[Deathpenalty] death penalty news-----USA
rhalperi at mail.smu.edu
Sun Nov 4 13:31:37 CST 2007
Its Not Whether to Kill, but How
WHEN the Supreme Court stayed an execution last week for the 3rd time in
October, making the month the 1st in nearly 3 years with no executions,
the justices sent a clear message to the states: Dont execute anybody
until we have decided Baze v. Rees, a death penalty case scheduled to be
argued in January.
This de facto moratorium on executions might sound like great news for
death penalty opponents. And in the sense that the country will probably
not execute anybody for perhaps 7 more months, it is. But at stake in the
Baze case, as in the dozens of other death penalty cases wending their way
through the courts, is not the constitutionality of capital punishment.
What's at stake is the constitutionality of how the state kills inmates,
and whether or not the method being used known as the "3-drug cocktail"
adequately protects the condemned from undue pain and suffering. Those
protections come under the Eighth Amendment of the Constitution, which
bars cruel and unusual punishment.
Recently, a United States District Court judge in Tennessee ruled that the
state had, in fact, violated the Eighth Amendment by disregarding the
"substantial risk" that the 3-drug cocktail would cause "unnecessary
pain." Those risks could have been addressed by additional safeguards, the
judge said, or by switching to a straight no-chaser consisting of an
overdose of a single barbiturate, the method recommended by a state study
The single-drug procedure is already used routinely in the United States,
on animals. It's what is euphemized by the phrase, "I had to put my pet to
sleep." One possible result of the upcoming Supreme Court case is that
execution protocols could switch from the standard 3-drug cocktail to the
single-drug format for animals recommended by the American Veterinary
The history of capital punishment in the United States has been filled
with a peripatetic search for a method of killing that doesnt offend a
blood-thirsty, yet tough-on-crime, yet squeamish public. Nooses, if the
drop is too short, leave bodies twitching; if the drop is too long, heads
pop off. Electric chairs result in horrible odors and burns. Firing squads
are too violent. Gas chambers take too long and are too grotesque. (One
1992 lethal gas execution in Arizona caused an attorney general to throw
up and a warden to threaten to quit if he had to execute by that method
Hoping to coat the nastiness of killing with a veneer of medical
respectability and also hoping to save the state the expense of fixing
its electric chair Dr. Jay Chapman, then the chief medical examiner in
Oklahoma, devised the 3-drug cocktail in 1977. Dr. Chapman has described
himself as "an expert in matters after death but not in getting people
that way," and he has acknowledged never having done any research on how
best to kill a man. Nonetheless, some version of his three-drug cocktail
is now used by the federal government and the 37 states that kill inmates
by lethal injection. (Nebraska, the 38th state with a death penalty, uses
the electric chair.)
The 3-drug cocktail is meant to mimic the induction of general anesthesia
and it works like this: The execution team inserts an IV line into the
condemned prisoner and then delivers a dose of sodium pentothal, an
"ultrashort-acting barbiturate," intended to render the inmate deeply
unconscious. A 2nd drug, pancuronium bromide, a muscle relaxant, then
paralyzes all skeletal muscles including the diaphragm. (This keeps the
inmate from gasping, moaning, flopping around on the gurney or otherwise
disturbing the witnesses; it also keeps him from breathing.) The 3rd drug,
potassium chloride, stops the heart.
In theory this method should kill inmates quickly and painlessly. The
problem is that in practice lethal injections are botched routinely. In
May 2006, in Ohio, Joseph Clark raised his head in the middle of his own
execution to say, "It's not working." In December 2006, Angel Diaz, in
Florida, grimaced on the gurney for 26 minutes. He sustained 11-inch and
12-inch chemical burns on his left and right arms respectively, and took
34 minutes to die.
The reasons for this include bad personnel selection (dyslexic doctors,
guards with histories of drug and prisoner abuse) and inadequate training
for death teams. ("Training? We don't have training, really," one team
member from San Quentin in California said under oath.)
Virtually no respected physicians participate in executions, as doing so
violates medical ethics. Supporters of the three-drug method, like Dr.
Mark Dershwitz, a professor of anesthesiology at the University of
Massachusetts Medical School, contend "you don't need a lot of fancy
initials after your name" to start and maintain an IV line. But while
that's true in most settings, securing IV access can be tricky when the
person assigned to the job is extremely anxious, or when the person on the
receiving end is cold, nervous, obese or has a history of IV drug use, not
an unlikely set of problems in an execution suite.
To complicate matters, pancuronium bromide, the paralytic agent, prevents
execution team members from knowing if the inmate is in pain, since he
can't speak or move. And the 3rd drug, potassium chloride the killer is
reported to cause an excruciating sense of burning in the veins. So a very
painful death is a perfectly plausible outcome.
In the last year, a Federal District Court judge in California, as well as
the Tennessee commission, conducted full reviews of their states lethal
injection protocols. Both concluded that either their departments of
corrections needed to ditch the 3-drug cocktail and kill inmates with a
massive dose of a single barbiturate, or execution teams needed to be
better trained. Thus far no state has opted for the single-drug format.
The reluctance stems from several causes, including the simple fact that
no state as ever used a single-drug overdose to kill an inmate before, and
experts are worried that killing an inmate with one drug instead of 3
might take more time, and that might be unpleasant to watch.
Whether states will be forced to go the single-drug route and thus give to
condemned prisoners the same consideration veterinarians give household
pets will ultimately come down to the Supreme Court's interpretation of
the Eighth Amendment. The central question of Baze is: Does the Eighth
Amendment bar an execution method that creates an unnecessary risk of pain
and suffering, or does it merely protect inmates against the wanton
infliction of pain and suffering?
If it's the former, then the 3-drug cocktail is probably unconstitutional,
because states would not have a compelling reason to continue to use it.
But if its the latter, then states could probably stick with the old
deathly recipe, as long as someone on the execution team had the
fortitude, after administering the 1st drug, to shake the inmate or look
in his eyes, or otherwise make a passing attempt to see if the anesthetic
(source: New York Times)
This is going to hurt
When the U.S. Supreme Court last week granted a stay of execution for a
murderer in Mississippi, it imposed a de facto moratorium on capital
punishment in the United States. With prosecutors in Texas and other
states now saying they will stop seeking execution dates, that moratorium
is likely to last at least until the court issues a ruling on another
death penalty case, Baze v. Rees, probably in June.
Some foes of capital punishment are celebrating this as a sign of a shift
in the national debate. They're mistaken.
Yes, in one sense, Baze v. Rees is a departure. For the 1st time since
1878, when the Supreme Court gave its approval to Utah's firing squad, it
will rule on the constitutionality of a particular method of capital
punishment. But the court won't rule on whether lethal injection violates
the Eighth Amendment, and it certainly won't decide if the death penalty
itself is unconstitutional. Instead, it plans at most a minor tune-up, a
bit of tinkering intended to salve the national conscience regarding the
infliction of pain.
The question in Baze v. Rees is how to determine whether Kentucky's
particular lethal injection protocol constitutes cruel and unusual
punishment. The court will consider if a three-drug cocktail used to
sedate and kill prisoners - a protocol Kentucky shares with three dozen
other states - carries an "unnecessary" risk of pain.
The precedent here is a 1947 Supreme Court ruling that "the traditional
humanity of modern Anglo-American law forbids the infliction of
unnecessary pain." The phrasing raises a question: How much pain is
It was only in the 1850s or so that Americans became squeamish about the
pain suffered by executed prisoners. Before that, pain wasn't a problem;
it was the point. Through drawing and quartering, beheading, shooting or
hanging, the state inscribed its power on the body of the convict and
provided a lesson in the perils of disobedience.
But as humanitarian sentiments took hold, cruelty became repugnant.
Americans grew reluctant to inflict pain, but they were unwilling to
abandon capital punishment. They wanted to preserve the alleged social
benefits - retributive justice and deterrence - but eliminate the
unsightly infliction of pain.
It's important to spell out whose suffering has been at stake. Courts have
tended to focus on what the prisoner feels, but the state officials who
determine execution methods have always been equally solicitous of
witnesses. Condemned men might well suffer least with the quick and sure
guillotine, but Americans reject that method as too gruesome - too
painful, in other words, for those watching the spouting blood.
It seems that an added measure of pain for the prisoner is necessary to
protect the sensibilities of witnesses and the public. Starting in the
1850s, such sensitivities gave rise first to improved hanging methods and
later to the electric chair, the gas chamber and lethal injection. Each
method was promoted as less painful for the prisoner and less emotionally
fraught for those who watch.
Baze v. Rees falls within this progression. The appellants are fighting
not for their lives but for a more efficient cocktail of deadly drugs. In
the current protocol, the first drug is intended to produce
unconsciousness, the second to paralyze the muscles and the third to stop
the heart. In some cases, the appellants say, the 1st drug fails, leaving
prisoners awake but unable to move or speak as they die of cardiac arrest.
It is the inverse of the guillotine. Rather than painless for the convict
but gruesome for witnesses, the 3-drug cocktail may be easy on witnesses
but brutal for the victim - an inert body suffering unspeakable pain.
The Supreme Court may end up banning the cocktail, but such a ruling would
only inspire state officials to mix up a new set of drugs. The new
protocol may at first appear to work smoothly, but decades of executions
have taught us this: Technical systems are prone to failure, and human
bodies are irreducibly complex and idiosyncratic. Whatever the technique,
executions will go horrifyingly wrong.
Pain is often a necessary part of death. That fact seems unfortunate yet
unremarkable in cases of natural death, but when the killing is done
deliberately, on our behalf, we keep seeking ways to spare ourselves the
(source: Opinion, International Herald Tribune----Mark Essig, the business
editor for The Asheville (North Carolina) Citizen-Times, is the author of
"Edison and the Electric Chair.")
The Global Debate on the Death Penalty
The debate over capital punishment in the United States--be it in the
courts, in state legislatures, or on nationally televised talk shows--is
always fraught with emotion. The themes have changed little over the last
200 or 300 years. Does it deter crime? If not, is it necessary to satisfy
society's desire for retribution against those who commit unspeakably
violent crimes? Is it worth the cost? Are murderers capable of redemption?
Should states take the lives of their own citizens? Are current methods of
execution humane? Is there too great a risk of executing the innocent?
We are not alone in this debate. Others around the world--judges,
legislators, and ordinary citizens--have struggled to reconcile calls for
retribution with evidence that the death penalty does not deter crime.
They have argued about whether the death penalty is a cruel, inhuman, or
degrading treatment or punishment. They have weighed its costs against the
need for an effective police force, schools, and social services for the
indigent. National leaders have engaged in these discussions while facing
rising crime rates and popular support for capital punishment. Yet, while
the United States has thus far rejected appeals to abolish the death
penalty or adopt a moratorium, other nations have--increasingly and
seemingly inexorably--decided to do away with capital punishment.
Indeed, the gap between the United States and the rest of the world on
this issue is growing year by year. In June 2007, Rwanda abolished the
death penalty, becoming the one hundredth country to do so as a legal
matter (although 11 of these countries retain legislation authorizing the
death penalty in exceptional circumstances, most have not executed anyone
in decades). An additional 29 countries are deemed to be abolitionist in
practice since they have either announced their intention to abolish the
death penalty or have refrained from carrying out executions for at least
10 years. As a result, there are now at least 129 nations that are either
de facto or de jure abolitionist.
According to Amnesty International, there are 68 countries that retain the
death penalty and carry out executions. But even this number is
misleading. In reality, the vast majority of the world's executions are
carried out by 7 nations: China, Iran, Saudi Arabia, the United States,
Pakistan, Yemen, and Vietnam. Many Americans know that the nations
comprising Europe (except Belarus) and South America are abolitionist. But
how many are aware that of the 53 nations in Africa only four ( Uganda,
Libya, Somalia, and Sudan) carried out executions in 2005? Even in Asia,
where many nations have long insisted that the death penalty is an
appropriate and necessary sanction, there are signs of change. The
Philippines abolished the death penalty in 2006, and the national bar
associations of Malaysia and Japan have called for a moratorium on
The international trend toward abolition reflects a shift in the death
penalty paradigm. Whereas the death penalty was once viewed as a matter of
domestic penal policy, now it is seen as a human rights issue. There are
now 3 regional human rights treaties concerning the abolition of the death
penalty: Protocols 6 and 13 to the European Convention on Human Rights,
and the Additional Protocol to the American Convention on Human Rights.
The International Covenant on Civil and Political Rights, ratified by 160
nations (including the United States), restricts the manner in which the
death penalty may be imposed and promotes abolition. Many human rights
organizations and intergovernmental organizations, such as the European
Union, see the death penalty as one of the most pressing human rights
issues of our time and accordingly have taken an active role in persuading
countries to halt executions.
The Supreme Court's View of International Law
As the international chorus of abolitionist voices swells, domestic courts
and policy makers have engaged in a heated debate over the role of
international law in U.S. death penalty cases. The debate came to a head
in mid-2005 after the Supreme Court held in Roper v. Simmons, 543 U.S. 551
(2005), that the execution of juvenile offenders violated the Eighth
Amendment's prohibition of cruel and unusual punishment. Writing for the
majority, Justice Anthony Kennedy observed that although international law
did not control the Court's analysis, it was both "instructive" and
"significant" in interpreting the contours of the Eighth Amendment.
The Roper Court noted that only 7 countries had executed juvenile
offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the
Democratic Republic of Congo, and China. But even those countries had
disavowed the practice in recent years, leaving the United States as "the
only country in the world that continues to give official sanction to the
juvenile death penalty." Id. at 575. The Court looked to treaties that
prohibit the execution of juvenile offenders, such as the Convention on
the Rights of the Child, which has been ratified by every country in the
world apart from the United States and Somalia. After examining these
sources and reviewing international practice, the Court concluded that the
"overwhelming weight of international opinion" was opposed to the juvenile
The Court's majority opinion prompted a scathing dissent by Justice
Antonin Scalia. After noting that the Court's abortion jurisprudence was
hardly consistent with the more restrictive practices of most foreign
nations, he commented: "I do not believe that approval by `other nations
and peoples' should buttress our commitment to American principles any
more than . . . disapproval by `other nations and peoples' should weaken
that commitment." Id. at 628. Conservative commentators and legislators
likewise attacked the Court's citation of foreign law.
What many critics of Roper failed to recognize, however, is that the Court
has long looked to the practices of the international community in
evaluating whether a punishment is cruel and unusual. In Wilkerson v.
Utah, 99 U.S. 130 (1879), the Court cited the practices of other countries
in upholding executions by firing squad. And in its oft-cited opinion in
Trop v. Dulles, 356 U.S. 86 (1958), the Court declared that banishment was
a punishment "universally deplored in the international community of
democracies." Since then, the Court has frequently referred to
international law in a series of death penalty cases interpreting the
meaning of the Eighth Amendment.
The Court's attention to international practice in death penalty cases is
undoubtedly related to the flexible and evolving character of the Court's
Eighth Amendment jurisprudence. In Weems v. United States, 217 U.S. 349
(1910), the Court held that the "cruel and unusual punishments" clause "is
not fastened to the obsolete, but may acquire meaning as public opinion
becomes enlightened by a humane justice." Id. at 378. In Trop, the Court
reaffirmed that the clause "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society." 356
U.S. at 100. The Eighth Amendment involves nothing more, and nothing less,
than evaluating whether a punishment violates human dignity.
Courts around the world have wrestled with these same questions. When
South Africa's Constitutional Court decided that the death penalty was an
unconstitutionally cruel, inhuman, and degrading punishment, it surveyed
the decisions of several foreign courts, including the U.S. Supreme Court.
Like that Court, the South African court did not consider foreign sources
to be controlling. Nevertheless, it observed that "international and
foreign authorities are of value because they analyse [sic] arguments for
and against the death sentence and show how courts of other jurisdictions
have dealt with this vexed issue. For that reason alone they require our
attention." State v. Makwanyane, Constitutional Court of the Republic of
South Africa, 1995, Case No. CCT/3/94, 34,  1 LRC 269. The high
courts of India, Lithuania, Albania, the Ukraine, and many others have
likewise cited international precedent in seminal decisions relating to
the administration of the death penalty.
In light of this history, the practice of citing international precedent
hardly seems to warrant the storm of controversy surrounding it. But
whether one agrees or disagrees with the Court's approach, a majority of
the current justices favors consideration of international law. In the
next few years, a number of capital cases will once again offer the Court
an opportunity to look beyond U.S. borders and survey international law
and the practices of foreign states.
Execution of Persons Who Did Not Kill
Article 6(2) of the International Covenant on Civil and Political Rights
(ICCPR) provides that the death penalty may only be imposed for the "most
serious crimes." T he United Nations (UN) Human Rights Committee, which
interprets the ICCPR's provisions, has observed that this provision must
be "read restrictively to mean that the death penalty should be a quite
exceptional measure." Human Rights Committee, General Comment 6, Art. 6
(Sixteenth session, 1982) 7; Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRIGEN1Rev.1 at 6 (1994). In a death penalty case from Zambia, where the
prisoner received a death sentence for participating in an armed robbery,
the committee held that the sentence was not compatible with Article 6(2)
because the petitioner's use of firearms did not cause death or injury to
The UN Safeguards Guaranteeing Protection of the Rights of Those Facing
the Death Penalty, adopted by the UN Economic and Social Council in 1984,
defines " most serious crimes" as "intentional crimes with lethal or other
extremely grave consequences." Referring to those safeguards, the UN
Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions has
concluded that the term "intentional" should be "equated to premeditation
and should be understood as deliberate intention to kill." United Nations,
Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary
Executions, U.N. Doc. CCPR/C/79/Add.85, 19 Nov. 1997, 13.
Yet in the United States, several states authorize the death penalty for
persons who are "major participants" in a felony, such as burglary or
robbery, even if they never killed, intended to kill, or even contemplated
that someone would be killed while committing the crime. In California and
Georgia, persons may be sentenced to death for accidental killings during
a felony or attempted felony.
Moreover, Texas, South Carolina, Georgia, Louisiana, Oklahoma, and North
Carolina allow for the imposition of a death sentence in some cases for
the rape of a minor, even if the victim did not die. These laws will be
subject to strong legal challenges in coming years, although this will not
be an easy battle, as demonstrated by the recent Louisiana supreme court
decision upholding a death sentence against an offender who was convicted
of raping a child. Louisiana v. Kennedy, No. 05-KA-1981 ( La. May 22,
Available data indicate that prosecutors rarely seek the death penalty
against "non-triggermen," and executions of these persons are few and far
between. These 2 factors alone indicate that the imposition of the death
penalty on persons who have committed nonlethal crimes may be ripe for
challenge. In the event that the Supreme Court examines the issue, it is
highly likely it will consider international practice. In Enmund v.
Florida, 458 U.S. 782 (1982), a case involving a defendant sentenced to
death under the felony-murder rule, the Court noted that international
norms were "not irrelevant" to its analysis, observing that the doctrine
of felony murder had been abolished in England and India, severely
restricted in Canada and a number of other Commonwealth of Nations
countries, and was unknown in continental Europe.
Execution of the Severely Mentally Ill
Although the Supreme Court has held that the Eighth Amendment prohibits
the execution of the mentally incompetent, state and federal courts have
routinely concluded that severely mentally ill prisoners are sufficiently
competent that they may lawfully be executed. Consequently, dozens of
prisoners suffering from schizophrenia, bipolar disorder, and other
incapacitating mental illnesses have been executed in the United States
during the last ten years. In June 2007, however, the Court overturned a
decision by the U.S. Court of Appeals for the Fifth Circuit, holding that
the court had used an overly restrictive definition of incompetence.
Panetti v. Quarterman, 127 S. Ct. 2842 (2007). This decision may encourage
state and federal courts to take greater care in evaluating the mental
status of those facing imminent execution, but it does not prohibit courts
from sentencing severely mentally ill prisoners to death, nor does it
guarantee that severely mentally ill prisoners will not be executed in the
In Atkins v. Virginia, 536 U.S. 304 (2002), in which the Court struck down
the execution of the mentally retarded, the Court cited an amicus curiae
brief submitted by the European Union (EU) as evidence that "within the
world community, the imposition of the death penalty for crimes committed
by mentally retarded offenders is overwhelmingly disapproved." Id. at 316
(citing in n.21 Brief for European Union as Amicus Curiae at 4). The
current Court likely would be open to considering similar amicus briefs in
a future case challenging the execution of the severely mentally ill.
A substantial body of international precedent exists regarding the
execution of the severely mentally ill. The UN Safeguards Guaranteeing
Protection of the Rights of Those Facing the Death Penalty prohibit
imposing the death penalty "on persons who have become insane." In 1989,
the UN Economic and Social Council expanded this protection to cover
"persons suffering from . . . extremely limited mental competence, whether
at the stage of sentence or execution." United Nations Economic & Social
Council, Implementation of the Safeguards Guaranteeing Protection of
Rights of those Facing the Death Penalty, E.S.C. Res. 1989/64, U.N. Doc.
E/1989/91 (1989), at 51, 1(d).The UN Commission on Human Rights has urged
countries not to impose the death penalty on persons suffering from any
form of mental disabilities. And the EU has consistently asserted that
executions of persons suffering from severe mental disorders "are contrary
to internationally recognized human rights norms and neglect the dignity
and worth of the human person." EU Memorandum on the Death Penalty (Feb.
25, 2000), at 4, www.eurunion.org/legislat/deathpenalty/eumemorandum.htm.
Racial and Geographic Disparities
Arbitrariness in capital sentencing was one of the factors that led the
Supreme Court to strike down existing state death penalty laws in Furman
v. Georgia, 408 U.S. 238 (1972). 4 years later, in Gregg v. Georgia, 428
U.S. 153 (1976), the Court's decision to uphold the newly revised laws was
based on its determination that the statutes minimized the risk of
arbitrary sentencing by channeling the discretion of capital juries. But
30 years later, factors such as race and geography continue to lead to
great disparities in capital sentencing. These disparities have led to a
different sort of arbitrariness, one that may not be consistent with
Studies have repeatedly shown that race matters when determining who is
sentenced to death. It has been said that, as a statistical matter, race
is more likely to affect death sentencing than smoking affects the
likelihood of dying from heart disease. In Philadelphia, the odds that an
offender will receive a death sentence are nearly 4 times higher when the
defendant is black. A 2006 study confirmed that defendants' skin color and
facial features play a critical role in capital sentencing. And over the
last 20 years, social scientists have repeatedly observed that capital
defendants are much more likely to be sentenced to death for homicides
involving white victims.
Enormous geographical disparities arise as well. This derives, in part,
from the lack of uniform standards to guide the discretion of state
prosecutors in seeking the death penalty. Prosecutors are almost always
elected officials, and their support or opposition to the death penalty in
a given case is often influenced by the level of popular support for
capital punishment within a given community. In San Francisco, for
example, the local prosecutor never seeks the death penalty because she is
morally opposed to it. In Tulare County, located in California's
conservative Central Valley, the chief prosecutor is a zealous advocate of
capital punishment. As a result, two persons who commit the same crime,
and who are ostensibly prosecuted under the same penal code, may be
subject to 2 radically different punishments.
Article 6(1) of the ICCPR provides that nations may not "arbitrarily" take
life. The term is not defined in the text of the treaty, nor has the UN
Human Rights Committee had an opportunity to elaborate on its meaning in
the context of an otherwise lawfully imposed capital sentence. In
evaluating "arbitrary arrest and detention," however, that committee
concluded that arbitrariness encompasses elements of inappropriateness,
injustice, and lack of predictability. The Inter- American Commission on
Human Rights, a human rights body of the Organization of American States,
has found that geographic disparities in the application of the death
penalty in the United States can result in a "pattern of legislative
arbitrariness" whereby an offender's death sentence depends not on the
crime committed but on the location where it was committed. In Roach and
Pinkerton v. United States, Case 9647, Annual Report of the IAHCR 1986-87,
the Inter-American Commission concluded that such geographic disparities
constituted an arbitrary deprivation of the right to life and subjected
the petitioners to unequal treatment before the law in contravention of
the American Declaration of the Rights and Duties of Man.
These sources are generally considered to be nonbinding. But that does not
mean that they are not persuasive. 5 justices of the Supreme Court--like
many judges throughout the world--find it a worthwhile endeavor to
consider international norms in evaluating whether the application of the
death penalty comports with basic human dignity, whether it constitutes
cruel and unusual punishment, and whether it is consistent with
contemporary standards of decency. As the community of nations continues
to debate the pros and cons of capital punishment, the United States
should take a seat at the table, listen, and learn.
(source: ZNet----Sandra L. Babcock is an associate clinical professor and
clinical director of the Center for International Human Rights at
Northwestern University Law School in Chicago)
Is death penalty justified?
Many years ago while working on my undergraduate degree, I was given an
assignment to complete a paper that would describe not only my position
about a controversial matter but also illustrate the rationale behind the
position I was taking.
Not surprisingly, my topic the death penalty remains controversial yet
today. Perhaps the American Bar Association is an organization that can
attest to this controversy.
The ABA has been working on the implementation of a death penalty
moratorium since 2001. This moratorium encourages state bar associations
to join the nationwide effort by thoroughly examining capital punishment
laws and processes in their jurisdictions.
On its Web site, the ABA provides information about the moratorium and the
steps taken to get this effort underway. It also provides information on
those who are responsible for directing the project.
In addition, it notes a very powerful quote from its former president,
John J. Curtin Jr., which states, "A system that will take a life must
first give justice."
The Death Penalty Moratorium Implementation Project Team is directed by
Deborah Fleischaker. In addition to the project team, there is a steering
committee that includes some well-known legal scholars, many of whom have
been active in civil rights matters. Among them are Stephen Hanlon, chair
LauraLynn Beattie, Zachary Carter, Charles Ogletree Jr., Morris
Overstreet, Cruz Reynoso, Thomas Sullivan and Denise Young.
The site notes several states and their level of compliance with the ABA
policies in such categories as: collection, preparation and testing of DNA
and other types of evidence; law enforcement identification and
interrogation; crime lab and medical examiner office matters;
prosecutorial professionalism; defense services; direct appeal process;
state post-conviction proceedings; clemency; capital jury instructions;
judicial independence; racial and ethnic minorities; and mental
retardation and mental illness.
Since the Supreme Court reinstated the death penalty in 1976, the Web site
notes, more than 100 people previously sentenced to death were freed based
on evidence that proved them to be innocent or, that due to some systemic
failures, judicial officials made the determination the death penalty
wasn't warranted. In many of the latter cases, the individuals were
convicted in error.
The Web site states 3,500 death row inmates haven't received the quality
of legal representation a case that could result in the death sentence
Some people say our judicial process may not be the best, but it works.
This is like saying it doesn't work for all but it's the best we can do
with what we have.
Perhaps this is an opportunity for the entire judicial process to be
examined by quality experts. It would be interesting to see the results of
such a process. The moratorium is an initial step to putting up a stop
sign to say, "Stop, think and re-evaluate."
(source: Opinion, Glenda Overstreet is an active volunteer in the Topeka
community----Topeka Capital Journal)
New policies are needed to halt unjust convictions
When the U.S. Supreme Court mandated the Miranda warning in 1966, it did
so to protect the public against coerced self-incrimination. But some
law-enforcement agencies resisted. They said that articulating those
rights hampered their ability to get confessions and released more
criminals on technicalities. In other words, if an arresting officer
forgot the warning or failed to notice that the subject was not competent
enough to waive protected rights, the case could be tossed.
Now we are seeing a host of new policy changes on the horizon. These
changes will help minimize false convictions. And again, we see resistance
from the very people who should care most about justice for all. It is
almost as if the law-enforcement establishment believes it is more
important to convict and then let the system sort it out. But those who
believe this have not fully grasped the harm some current procedures have
perpetrated on the innocent. Law enforcement should welcome - not reject -
changes designed to protect.
The main problem is that many innocent people have been convicted. The
number we know of is very large, and - given the problems discovered with
formerly accepted legal procedures and certain types of evidence - it
stands to reason that many more innocents are serving time or possibly
have been executed.
Proposed changes in courts around the country directly address this issue.
They include: improved procedures for the identification of suspects,
including expanded use of DNA technologies; improved efforts to
corroborate information given by informants or "snitches"; and higher
standards for crime labs. Some long-enshrined procedures are now being
reviewed with a newly critical eye. For example, research in psychology
for more than a century has proven repeatedly that eyewitness testimony (a
leading factor in false convictions) is fallible. Finally, officials are
And yet there is still resistance in many law-enforcement circles.
Here are some sobering statistics from the Innocence Project at the
Benjamin N. Cardozo School of Law at Yeshiva University. Since 1989, this
group has freed 208 men via postconviction DNA analysis on biological
samples from their supposed crimes. Fifteen were on death row, facing
execution for something they did not do. The average length of time served
was 12 years, with many in prison for more than two decades. The total
number of known years served by the innocent is a staggering 2,563. And
these are just the statistics for the small percentage of cases in which
biological evidence was involved (and testable), and for which the
overburdened personnel at the Innocence Project had time. They currently
have tens of thousands of letters in their files from inmates begging for
Here's just one example of how the system broke down. In Texas, Roy Criner
received a prison term in 1990 of 99 years for the rape and killing of a
teenage girl. Later, he submitted to DNA testing, and the results excluded
him as the rapist. The Texas Court of Appeals, however, ruled this
evidence would have made no difference to the conviction, so he remained
Then a local reporter found more evidence of Criner's innocence. A
cigarette butt, previously discounted, was tested for DNA. The test result
proved that the person who had smoked it had been the rapist-murderer -
and that this person was not Criner. After serving 10 years for a crime he
did not commit, he finally was set free.
"It breaks you down." Those are the words of one exonerated convict in the
documentary movie After Innocence. It features cases such as that of Nick
Yarris, who spent 22 years on Pennsylvania's death row for murder. Even
after he was freed, he could not persuade the prosecutor to send the DNA
profile that had exonerated him to a national database to assist in
identifying the real killer.
It is almost as if law enforcement does not want to identify and exonerate
the innocent. Eight states do not yet mandate giving inmates
postconviction access to DNA analysis. Five states defeated bills intended
to change policies on eyewitness identification. The California State
Sheriff's Association opposes bills that require officials to record
interrogations and corroborate informant information; the purported fear
is that such procedures would create loopholes for defense attorneys to
exploit. This organization also opposes new procedures for suspect
lineups. Research has revealed that witnesses, when asked to pick from
lineups, make comparisons among those lined up, which can alter their
memory. Or they may simply choose the one who "looks" criminal. (The
recent study by the Chicago police department that "proved" that current
methods worked just fine was significantly flawed.)
Even if the system releases the innocent, it sometimes seems to wish to
punish them somehow anyway. The conviction records of many exonerated
individuals are not expunged, making it difficult for them to find
employment and even a place to live. Their most productive work years are
lost, and they can expect little or no assistance with integration back
into the community. A few have received payouts from successful lawsuits,
but most have nothing. Some say it was easier for them in prison.
It seems that some of our sworn protectors would rather protect
themselves. Why else would they resist policy changes arising from
verified harm? These system failures ought to disappoint law-enforcement
personnel, as they did Gov. George Ryan in Illinois. Upon learning that 13
men on Illinois' death row had been exonerated, Ryan commuted the
sentences of all death-row inmates because he recognized that changes were
The English jurist William Blackstone famously said: "Better that 10
guilty persons escape than that one innocent suffer." Apparently that's
literary fluff to some people. They should talk to exonerated convicts. Of
course, we should expect collateral damage within any human institution,
but if we have identified ways to reduce it, we should utilize them. It is
shocking that officials entrusted with public safety would worry more
about technical slip-ups that might free a guilty person than about errors
that repeatedly have victimized the innocent.
(source: Philadelphia Inquirer -- Katherine Ramsland teaches forensic
psychology at DeSales University and she has published 30 books, including
"The CSI Effect." )
More information about the DeathPenalty