Death Penalty Flunks Fairness Test

 By Paul Leighton

Paul Leighton, an assistant professor of criminology at Eastern Michigan University, is the author of "Class, Race, Gender & Crime." January 21, 2002 FOR THE SECOND year in a row, U.S. executions declined last year - to 66 from a quarter-century high of 99 in 1999 - but death row's two most notorious inmates were removed.

The federal government performed its first execution in decades on Timothy McVeigh for his domestic terrorism in the Oklahoma City bombing. And a judge removed former Black Panther Mumia Abu-Jamal from death row because of concerns about ambiguous jury instructions, although he upheld Abu-Jamal's conviction for the 1981 shooting of a Philadelphia police officer.

Abu-Jamal's case embodies all that's wrong with the death penalty for both sides of the issue. Supporters see Abu-Jamal as wrongly convicted, an all too frequent occurrence fueling support for a moratorium on executions endorsed by Supreme Court Justice Sandra Day O'Connor. Abu-Jamal's supporters see the black activist (who has no previous arrests for violence) as a symbol of racial oppression, an articulate defendant personifying the statistics that blacks make up 11 percent of the population, 46 percent of prisoners and 54 percent on death row.

The other side sees a man convicted of killing a police officer, of standing over the fallen officer and shooting him four times at close range in the head and body. After two decades and two execution dates, Abu-Jamal is not just alive but still filing appeals. The latest series of four appeals leading to the recent ruling raised 29 issues and, with response briefs, generated an 800-page file (plus a trial transcript and a variety of other court opinions) requiring a 272-page judicial response.

For people not solidly in either camp, what's disturbing is that the judge found two important potential problems in Abu-Jamal's proceedings: the number of prospective black jurors excluded by the prosecution and ambiguous instructions to the jury about the factors they could consider. The case is a reminder that society still needs to scrutinize the role of race in executions and be vigilant about apparent "details" if the state is to play God with people's lives. For all the people who felt more comfortable with the death penalty following McVeigh's execution, the decision in Abu-Jamal's case is a reminder about the difficulty of setting up a system that consistently delivers factually guilty people who deserve to die.

In 1972, the Supreme Court halted executions because it found that death sentences were arbitrarily administered, which arose from jurors facing the decision of whether to acquit or execute. Trials then became split into a guilt phase followed by a sentencing hearing, where jurors receive instructions about pre-determined aggravating and mitigating circumstances plus a worksheet form to structure decision-making.

Abu-Jamal's case involved the claim that the instructions Pennsylvania uses in all its capital cases are ambiguous and could lead to jurors failing to consider important evidence related to mitigating factors. Jurors are told the decision for death must be unanimous and this implies that they must also be unanimous about the presence of a mitigating factor to record it in the worksheet form and give it further weight. In U.S. District Judge William Yohn's words, the "temporal proximity" of the words created a "reasonable likelihood" that relevant evidence would be excluded. A life hung in the balance of a word game played by lawyers about the "linguistically plausible conclusion" from the jury instructions and a form.

In another recent case, the Supreme Court struck down a sentence when jurors were not told that the alternative to death was life imprisonment without parole - an obviously important piece of information that several states fought to exclude. With executions, details seemingly matter, but courts also find that having an attorney who was asleep in court did not void a death sentence unless he slept through important parts of the trial. Supreme Court Justice Antonin Scalia went so far as to state that "mere factual innocence is no reason not to carry out a death sentence properly reached."

It's understandable that the late Justice Harry Blackmun, shortly before his retirement in 1994, wrote a dissenting opinion saying that, although he had voted for more than 20 years to uphold the death penalty, he would do so no more. "From this day forward, I no longer shall tinker with the machinery of death," Blackmun wrote in the case of a Texas convict whose death sentence was upheld by the Supreme Court's majority. The death penalty has to be imposed fairly and consistently or not at all, and Blackmun concluded fairness was not going to happen: "Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." Twenty years of work and "the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake." Blackmun noted: "The basic question - does the system accurately and consistently determine which defendants 'deserve' to die? - cannot be answered in the affirmative."

At the practical level, Abu-Jamal's death sentence becomes life imprisonment without parole unless the district attorney starts another sentencing hearing within 180 days of the Dec. 18 decision in his case - a difficult task after 20 years. The judge did not agree with Abu-Jamal that excusing the potential black jurors was necessarily inappropriate, but gave him leave to request additional hearings on the matter, a decision that opens up the possibility of a new trial. While pondering Abu-Jamal's future - and the fates of 3,600 still left on death row - we would do well to think back on Blackmun's words.