Who Gets the Death Penalty?

15/05/02

By BOB HERBERT

How's this for a mistake in a death penalty case?

Back in 1994 the Georgia State Board of Pardons and Paroles, in an official order denying a request for a stay of execution, somehow inserted the wrong man's name into a crucial paragraph. So instead of William Henry Hance, which was the name of the man seeking the stay, the order contained a reference to someone named Larry Grant Lonchar.

Georgia authorities did not consider that to be a big deal. Mistakes happen. When an appeal on Mr. Hance's behalf reached the Georgia Supreme Court, the vote went against him, 4 to 3, which is the judicial equivalent of a coin toss or a crapshoot. With a human life at stake.

 Mr. Hance, an ex-marine, was convicted of murdering a prostitute. He insisted he was innocent. His request for a stay of execution eventually reached the U.S. Supreme Court. Justice Harry Blackmun wrote that even if he had not recently "reached the conclusion that the death penalty cannot be imposed fairly within the constraints of our Constitution. . . . I could not support its imposition in this case."

 He said: "There is substantial evidence that William Henry Hance is mentally retarded as well as mentally ill. There is reason to believe that his trial and sentencing proceedings were infected with racial prejudice. One of his sentencers has come forward to say that she did not vote for the death penalty because of his mental impairments."

 Justice in Georgia is peculiar. That particular juror, Gayle Lewis Daniels, was ignored. Her account was later corroborated by another juror, Patricia Lemay. Ms. Lemay told me in a telephone interview that the jury deliberations were marked by ugly racial comments and that she had felt "nauseated" when the trial was over.

 Ms. Lemay, who is white, said comments by jurors included references to Mr. Hance as a "typical nigger" involved in a murder and "just one more sorry nigger that no one would miss."

 She said one juror remarked that executing Mr. Hance would result in "one less nigger to breed."

 Justice Blackmun's reading of the case did not help Mr. Hance because the full court voted 6 to 3 to deny the request for a stay.

 Mr. Hance was electrocuted on March 31, 1994.

 Cases like Mr. Hance's, and several cases in which it has been proved that inmates on death row were innocent, have contributed to a growing sense of unease with the death penalty in this country. Last week the governor of Maryland, Parris Glendening, ordered a moratorium on the death penalty in his state pending the results of a special study to determine whether the capital punishment process in Maryland is fair, and in particular whether it is tainted by racial bias.

 Maryland thus becomes the second state to declare a moratorium on the death penalty. Gov. George Ryan of Illinois called a temporary halt to executions two years ago after several condemned inmates were exonerated and released from prison. Mr. Ryan is a Republican and Mr. Glendening a Democrat. Both are supporters of capital punishment.

 "It is imperative," said Mr. Glendening, "that I, as well as our citizens, have complete confidence that the legal process involved in capital cases is fair and impartial."

 In Maryland, it clearly is not. The vast majority of the state's murder victims are black. But of the 13 men currently on death row, 12 were convicted of killing whites. Across the U.S. the death penalty is applied disproportionately to blacks who kill whites.

 Awareness of the myriad problems with the death penalty is mounting. More and more individuals and organizations are expressing concern about the danger of executing the innocent, the problems of bias and incompetent counsel, the ethical questions involved when defendants are mentally impaired or were juveniles at the time of the crime, and so on.

 It is becoming ever more obvious that whether or not you get the death penalty depends a great deal more on who you are than what you did. We'll execute William Henry Hance, but not Robert Hanssen, perhaps the most dangerous mole ever to sell U.S. secrets to a foreign power. And we won't execute Andrea Yates, the Texas woman who coldly and methodically drowned her five children.

 We're very selective with the death penalty. Only certain types qualify. Which stands the whole idea of equity and justice on its head.