The Baltimore Sun

Another look at capital punishment

Penalty: An Illinois panel's study again raises the question whether state-sanctioned killing is a fair form of punishment.

By Michael Hill

April 21, 2002

THE DEATH penalty seems entrenched in American culture as a tradition that borders on myth - an out-of-the-Bible, eye-for-an-eye punishment that once brought order to the frontier and can now bring justice to traitors and terrorists as well as murderers.

But a report issued last week by an Illinois commission that spent two years studying capital punishment has re-energized the debate about its future, opening the question whether it can ever be administered fairly.

"I think the Illinois report raises critical and important questions about the future of capital punishment," says Austin Sarat, a professor at Amherst College and the author of the book When the State Kills: Capital Punishment in American Culture.

"When proponents of the death penalty ask why someone like Ted Bundy does not deserve to die, opponents have a big burden to bear," he says, referring to the killer of at least 28 women, who was executed in Florida in 1989. "They seem to be going against the cultural mainstream. But the Illinois report is signaling it may be possible to come at the death penalty from the values of middle America, the belief in fairness."

Sarat says that when race enters into the use of the death penalty, when capital defendants don't have access to adequate counsel and when innocent people are sent to death row, "then opponents of the death penalty can claim the moral center of American politics." He adds, "That's not to say the death penalty will die or end quickly in the U.S., but it is to say that we are in a period of re-evaluation."

When the Supreme Court in 1972 declared the death penalty "cruel and unusual" because of its arbitrary application, many thought that was the end of state-sanctioned killing, a punishment that was disappearing from every other Western industrialized nation. Support for the death penalty in the United States waned during the 1960s, and the number of executions declined from 1,289 in the 1940s to 715 in the 1950s, and to 191 from 1960 to 1972.

But after the court ruling, many states immediately passed statutes designed to overcome the constitutional objections, including Maryland, which approved a reworked death penalty law in 1975. In 1976, the Supreme Court approved one of the new laws, reinstating the death penalty. Since then, 769 people have been put to death.

"We have managed to exempt the execution process from the thorough and altogether healthy fear of governmental power that informs almost every other arena of American life," says Frank Zimring of the University of California, Berkeley. "I think it is linked quite organically to the vigilante tradition ... a mythology that is a large part of support for the death penalty in places where the executioner is quite active."

The penalty has disappeared from Europe. America joins countries such as Iran and China in regularly executing those whose crimes are judged the most heinous. Still, the penalty's presence in the legal system seemed appropriate after the Oklahoma City bombing and after Sept. 11, the only possible sanction for any held to be involved in those acts. But the latest terrorist attacks only interrupted a growing chorus of complaints about the death penalty that many think will cause a serious reconsideration.

Two years ago, after a series of death row inmates were found to be innocent, Illinois Gov. George Ryan, a Republican, called a moratorium on executions and appointed a commission to review the penalty. The panel reported last week, proposing an extensive series of reforms at every level of the criminal justice system that it said are needed if the death penalty is to be fairly administered.

The reforms include a serious reduction in crimes eligible for the penalty, a statewide panel to review death sentence prosecutions, videotaping all interrogations with suspects in capital cases, limiting the use of jailhouse informants and appointing highly competent defense lawyers.

"For Americans, the death penalty is an appealing statement about our values," Sarat says. "It is not about our interest in killing criminals or combating crime, it is about who we are as a culture and society. It is a way of expressing and embracing mainstream American values about individual responsibility."

But, Sarat says, just as embedded in American values is a sense of fairness, particularly in regard to a punishment with such irreversible finality. The Illinois report, he says, shows how difficult it is to be fair when administering the penalty.

Edward A. Tomlinson of the University of Maryland School of Law says that the Illinois report helps explode one myth about the death penalty - that faulty convictions are less likely in these cases than in noncapital cases. "In capital cases, the crime is usually a horrible crime, there's a lot of publicity and community pressure," he says. "The fear is that more often than in other cases, prosecutors feel they have to go ahead with a shaky case."

Stephen Bright, of the Southern Center for Human Rights in Atlanta, points out that "the more you seek the death penalty, the more routine it gets, the less attention and care is taken with each case."

'Prone to error'

Any error rate in executions "gets people's attention," says Robert Johnson, chair of the justice, law and society department at American University. "Many people think about the death penalty in almost religious terms," he says. "The fact is, it is a human system, part of a political system that comes out of a particular culture that has its own prejudices and shortcomings, as well as assets. As a consequence, it is prone to error."

DNA evidence, Johnson notes, enabled people to see that the system could be carefully followed and still result in mistakes. "It should give us pause," he says. "We tend to think of our society as quite just, but every society has its injustices."

Zimring of Berkeley notes that support for - and use of - the death penalty has tremendous regional variations. "If you take a look at the distribution of executions since 1976, there are 188 in the South for every one in the East," he says.

Zimring has compared the lynching records between 1882 and 1918 with post-1976 executions. "The 14 states with the highest number of lynchings turn out to produce about 85 percent of all executions," he says. His statistics show that the 14 states with the lowest lynching numbers produced 3 percent of the executions; 11 of those states have not executed anybody. The death penalty is not sanctioned in 12 states and the District of Columbia.

The states with high execution and lynching rates, Zimring says, are those that traditionally had a high level of distrust of the government. One would think those would be populated by people who would not want to give the state the power to kill. But more important was their distrust of the federal government and courts telling the states what they could do. And the lynching connection, Zimring notes, ties contemporary executions to a tradition of community justice.

Nowhere is the capricious nature of geographical tradition more apparent than along the Potomac River. Since 1976, Maryland has executed three people. On the other side of the river, Virginia has put 85 people to death, second only to Texas' 264. This disparity is true within states as well as certain jurisdictions - like Baltimore County in Maryland - that seek the death penalty far more than others.

Deterrence doubted

Zimring says the standard rationale for the death penalty as expressed by politicians - that it deters violent crime - is not even an issue among most of the public, in part because no one has been able to prove a deterrent effect. States with high rates of executions tend to remain states with high murder rates. Instead, Zimring says, most who support the penalty say it is because it brings "closure" to the victims' families. He notes there have never been studies to find if this is true.

Robert Bohm, who teaches graduate and undergraduate courses about the death penalty at the University of Central Florida, says he is never surprised by how little his students know about it.

"People are misinformed about the cost, thinking that it is more expensive to keep someone in prison for life than to execute them, when, in fact, the opposite is true," he says. "People argue that very few errors are made in death penalty cases when a study shows that two-thirds of all capital cases have had either the sentence or conviction overturned on appeal. ...

"There's very little that the public knows about the death penalty that is accurate," Bohm says. "The amount of misinformation and lack of information is extraordinary, but people form very strong opinions based on it." 

EDITORIAL The Only Way to Make Death Penalty Fair: Abolish It

Report of the Illinois Commission on Capital Punishment 

April 17, 2002

Despite its raft of recommendations for improving the administration of the death penalty, the Illinois Commission on Capital Punishment squarely acknowledged the one inescapable reality that makes its work futile: You cannot make the death penalty foolproof and that means it will never be fair."No system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death," the commission said in its recent report. Actually, that's not quite right. 

There is one way to achieve such certainty: Abolish the death penalty.With life in prison without parole a readily available, effective and actually less costly alternative, there is no way to justify writing off the execution of innocent people as acceptable collateral damage in the battle against crime.

The Illinois commission was established two years ago after Gov. George Ryan declared a moratorium on executions. The case for the time-out was compelling. Illinois reinstituted the death penalty in 1977. Since then, 25 deathrow inmates got to the point in the process where execution was imminent. 

Of that group 12 were dispatched by lethal injection. The other 13 were found to be innocent and freed.With an error rate like that, officials may as well flip a coin to decide who lives and who dies.

The commission's recommendations for improving those odds include creating a state panel to review decisions to seek the death penalty, barring the execution of the mentally retarded, videotaping all police interrogations in capital cases, expanding DNA testing, reducing the number of capital crimes, prohibiting executions based on uncorroborated testimony of jailhouse informants and allowing trial judges to reverse death penalty verdicts.

But Ryan has a better idea. "Ninety-nine percent [certainty] isn't good enough, especially if you're in that 1 percent," the governor said, according to a spokesman. "Until I can be sure with moral certainty that no innocent man or woman will be executed, no one will meet that fate." Words to live by. 

Copyright � 2002, Newsday, Inc.

UK US panel urges death-penalty reformsPanel: The death penalty has been used too often

16 April, 2002

By Martin Turner in Washington  A panel in the American state of Illinois has concluded that sweeping changes should be made to the process of capital punishment in the state. It said it had been used too often since being reintroduced in 1977. Supporters of the death penalty can no longer turn a blind eye to the problems that exist  National Coalition to Abolish the Death Penalty  The report comes two years after the Governor of Illinois, George Ryan, halted executions because a number of prisoners on death row were found to be innocent. Opponents of the death penalty have welcomed the report, calling it a turning point in the debate over the issue. The panel's report runs to more than 200 pages, and reaches the conclusion that no system can provide an absolute assurance against a miscarriage of justice. Given human nature and frailties, it says it is impossible to guarantee that an innocent person will not be sentenced to death. Report welcomed The panel recommends 85 ways to guard against unwarranted executions, including videotaping all questioning of suspects in capital cases, and changes to the way identification parades are conducted.  Illinois Governor George Ryan announced a moratorium on state executions The panel stopped short of calling for the abolition of capital punishment, saying it was outside its terms of reference. But it said a narrow majority of its members believe the death penalty should be ended. A spokesman for the National Coalition to Abolish the Death Penalty called the publication of the report a historic day, and said opponents were hoping for a mass commutation of death sentences in the state. The report's recommendations still have to be enacted by the state legislature, but they are certain to be carefully studied in the other 37 states that have the death penalty. Opinion polls indicate that while two-thirds of Americans still support capital punishment, fears are increasing that innocent people could be put to death.

The Virginian-Pilot

Death penalty needs common-sense reforms

April 17, 2002

 Illinois is leading the nation in striving to ensure that capital punishment is never applied to an innocent person. Virginia, which moves more rapidly from sentencing to execution than any other state, should do no less. 

While there has been more tangible evidence of error in death cases in Illinois than Virginia, it is unclear whether that is because Illinois is more error-prone or because Virginia applies blinders in examining its criminal justice system. 

An extensive set of recommendations released Monday by the Illinois Commission on Capital Punishment apply to a variety of practices involving investigations, trials and post-conviction proceedings. Many are as common in Virginia as in Illinois. Among such recommendations: No capital conviction should be based solely upon the testimony of a single eyewitness, in-custody informant, or accomplice. Such testimony -- particularly when one party has something to gain -- is inherently risky, but Virginia prosecutors often rely on it. T

 Establish a statewide commission, comprised of the attorney general, three prosecutors and a retired judge, to confirm a local prosecutor's decision to seek the death penalty. A Virginia legislative watchdog agency last winter identified wide discrepancies among localities in the types of crimes for which capital convictions are sought. Double standards undermine the system. 

Videotape all questioning in a police facility of a capital suspect, and repeat on tape for the defendant any statements he is alleged to have made elsewhere. Such practice might have saved Virginia embarrassment in the case of Earl Washington Jr., who received an absolute pardon in 1999 for a false capital conviction based solely on his own confession. Upgrade training for attorneys and judges handling capital cases. Virginia practices are better than they were a couple decades ago, but defendants -- particularly indigent ones -- can still wind up on death row having been marginally represented at trial. 

Gov. Mark Warner should convene the same sort of prestigious, bipartisan, philosophically mixed panel that operated in Illinois and direct it to look no less carefully at Virginia practices. 

Richmond attorney William Broaddus, a former Virginia attorney general who has evolved from a death penalty supporter to critic because of specific concerns about the way the system works, would be an excellent candidate to head such a panel. The group should be balanced with prosecutors, law enforcement officials and former jurists. 

Through Earl Washington Jr., Virginians know that a false capital conviction can happen in Virginia. To fail to take advantage of what is clearly the most comprehensive state study ever conducted on the subject would be both shameful and a deliberate act of neglect.Virginian Pilot.

Editorial

Shameful death penalty mistakes

April 19, 2002

More than two years ago Illinois Gov. George Ryan imposed a moratorium on the death penalty and established a diverse commission to study its application. It was a humane response to the incontrovertible evidence that the state's system of imposing capital punishment was seriously broken. In a little more than a decade, 13 men had been released from death row after their innocence was established. One, Anthony Porter, came within 48 hours of being executed.

The commission was made up of 14 members with varying views of the efficacy and desirability of the death penalty, including highly respected prosecutors and defense attorneys, former FBI director William Webster and former U.S. Sen. Paul Simon. On Monday , only days after the 100th death row prisoner nationwide was released after being found innocent, the commission returned with a report worthy of the seriousness of the subject matter.

Its 85 specific recommendations were the result of extraordinary work and thought. Members painstakingly analyzed what happened in those 13 cases of wrongful convictions, and they more generally reviewed the hundreds of cases in which the death penalty was applied since its re-authorization in the state in 1977. The commission looked at death penalty laws and procedures in other states and invited the opinions of experts in fields such as police practices and eye-witness testimony.

The results were recommended changes in every aspect of the system. The commission suggested videotaping law enforcement interrogations and confessions, creating a panel to review prosecutors' decisions to seek the death penalty, limiting the use of the penalty when the only evidence is testimony by a jail-house snitch or single eye-witness and reducing the types of crimes eligible for the death penalty, among others.

Even in the rather formal writing of an administrative report, it was clear that commissioners were stunned by what they found. Commenting on the cases of the 13 men exonerated, the report said. "All 13 cases were characterized by relatively little solid evidence connecting the charged defendants to the crimes. In some cases, the evidence was so minimal that there was some question not only as to why the prosecutor sought the death penalty, but why the prosecution was even pursued."

In Florida, too, innocent people have been placed on death row by police and prosecutors more interested in convictions than in justice.

We are sentencing people to death under a system known for its errors and inaccuracies. And Florida's system doesn't provide the procedural protections found in Illinois. In Florida, a jury recommendation for death doesn't have to be unanimous, as it does in Illinois. Moreover, if a jury recommends a life sentence in Florida, a judge can override it and impose death, as has happened 166 times.

No one has yet calculated the cost of adding the protections recommended by the commission, but how do you put a price tag on changes that could save an innocent person from execution? Yet even if every change were implemented, the commission admits there would be no guarantee that an innocent person wouldn't be put to death: "The Commission was unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly."

Gov. Jeb Bush has effectively put Florida's executions on hold until the U.S. Supreme Court decides a case that could put the constitutionality of our death penalty at risk. No public outcry has resulted. In polls, it is apparent people are feeling far less comfortable with the ultimate punishment. It would be a good time to abolish capital punishment entirely.

If that doesn't happen, and we are under no illusions it will, Bush and the Legislature have a moral duty to put in place many of the Illinois commission's recommendations. The same mistakes occuring in Illinois are happening here, and in every state with a death penalty. The national shame is that they have been tolerated this long.