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Imperfections Abound with Death Penalty
A recent editorial in The Virginian-Pilot points to the problem of arbitrariness in applying the death penalty. The editorial asks, “Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?”
The editorial continues, “Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.”
In place of an arbitrarily applied death penalty, the editorial concludes that life in prison without parole is a satisfactory alternative, and should be the choice Virginia makes.
The complete editorial may be read below:
Imperfections abound with death penalty
The legal decision facing Harvey Bryant - and every other chief prosecutor weighing whether to pursue the death penalty in a murder case - cannot be made in a vacuum when the choice is fraught with moral, political and practical ramifications.
In the 2006 murder at Hilltop Shopping Center, for example, Bryant, Virginia Beach's commonwealth's attorney, had to consider not just whether the crime met the 15 legal criteria for a death case. He also looked at the strength of the case (no eyewitness, but strong circumstantial evidence). He considered the heinousness (the killer had shot his victim in the back as she tried to escape) and the number of victims (one). He listened to the wishes of the victim's family (one wanted death).
Bryant's decision to forgo the death penalty against Christopher Hagans - guaranteeing with Hagans' guilty plea that he spends the rest of his life in prison without possibility of parole - was the right call. He told The Pilot's Duane Bourne that last month's plea agreement brought some finality to Elisabeth Kelly Reilly's family. And it greatly lessens the chance of extensive, costly, time-consuming appeals.
These are gut-wrenching decisions. Bryant acknowledges that. But they're also arbitrary. In another case recently in court - Marcus Garrett, convicted of killing three people at an Oceanfront condominium in 2005 - Bryant sought the death penalty.
That choice was much easier, he said. Three murder victims, not one. Garrett methodically shot five people, two of them mothers. A judge ultimately sentenced Garrett last month to life in prison, but the questions remain:
Is it fair to weigh how many people died? Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?
The shortcomings of this justice system are numerous and obvious. Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.
As Elisabeth Reilly's mother wisely pointed out, killing Hagans can't change what happened, and it wouldn't make it right. Only two things might have helped her feel better: erasing her daughter's agony and that of her family - which no punishment can do - and knowing the state would never give the man a chance to hurt anyone again.
Virginia has that option. Bryant exercised it in accepting Hagans' guilty plea. He's going to prison for the rest of his life. That's enough for Reilly's mother. It should be enough for the rest of us, too.
("Imperfections Abound with the Death Penalty," The Virginian-Pilot, November 7, 2008). See Arbritrariness, Victims, and Editorials.
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Former New Jersey Supreme Court Justices Discuss the Failure of the Death Penalty Law
Former members of the New Jersey Supreme Court recently shared their insights on the death penalty at a symposium sponsored by Seton Hall and Fordham law schools, and by the the New York City and New Jersey State Bar associations. Five former members of the Court, including two chief justices, reviewed the 25 years of capital punishment in New Jersey before 2007’s repeal of the death penalty. Their conclusions echoed the opinion of Justice Barry Albin in State v. Wakefield (2007) that, compared to murderers serving 30 years to life in prison, those slated for death seemed to be the product of "random selection." Former Chief Justice Deborah Poritz (pictured) characterized the efforts of the Court as “an extraordinary experiment in trying to understand the death penalty from both a societal and an individual perspective.…” and that proportionality review became “the key to understanding how difficult it was to make the death penalty work in any sensible way.” Through her work on proportionality reviews, studying the reasons behind the choice for death versus imprisonment, she “began to feel…this system is…impossible. We really can find no way to do this that will take the arbitrariness out of the system,” she said.
In an editorial on the symposium and New Jersey's abolition of the death penalty, the New Jersey Lawyer, wrote:
The court passed every capital conviction through the prism of reflection, seeking to weed out the arbitrariness that justice abhors. When the representatives of the people saw that enforcement of the death penalty could not be reliably reconciled with rationality in its application, they acted, with the governor's assent, to repeal the death penalty. For that dynamic interaction among courts, electorate and elected officials, we express our wonder and respect. And we are proud to hold up "Jersey justice" as a model for the world.
("Editorial: Reflections on the repeal of capital punishment," New Jersey Lawyer, May 19, 2008). See Arbitrariness and New Voices.
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A Death Sentence Voided
In May 2008, the California Supreme Court threw out the death sentence of convicted murderer Adam Miranda and ordered a new sentencing trial, ruling that Los Angeles County prosecutors failed to disclose key information that likely affected the sentencing of Miranda. A Los Angeles Times editorial highlights the arbitrariness of this case, noting that many defendants without dedicated representation might not have fared so well. This editorial asks about the other inmates on California's death row:
Miranda had an attorney whose firm was willing to donate millions of dollars worth of time to his case. Most of the 669 people on San Quentin's death row aren't nearly as lucky. If they have lawyers at all, they're usually harried, well-meaning professionals who do the best they can with the limited resources the state gives them to pursue their appeals. Earlier this year, one defense lawyer told the California Commission on the Fair Administration of Justice that, in a single death-penalty case, he typically must review 100 boxes of files and explore 40 areas in which things may have gone wrong -- but must tell his clients that "maybe I can only do seven of them" because there isn't enough money to do the rest.
Confronted with the enormous cost of the death penalty in California, its supporters argue that it would be cheaper if the process were sped up. Yet Miranda's case shows how important those seemingly endless appeals can be. . . . California's death penalty costs too much -- in time and money, but mostly in its potential for injustice -- to be sustained.
(Editorial "A Death Sentence Voided" Los Angeles Times, May 7, 2008). See also Costs and Editorials.
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EDITORIAL: Paper Says Texas Man Sentenced Under "Law of Parties" Should Not Be Executed
The Fort Worth Star-Telegram is urging the Texas Board of Pardons and Paroles and Texas Governor Rick Perry to spare the life of Kenneth Foster (pictured), whose execution is scheduled for August 30. Foster was sentenced to death under the Texas Law of Parties that permits a person involved in a crime to be held accountable for the actions committed by someone else. In this case, Texas maintains that Foster deserves the death penalty because he should have anticipated that a passenger in his vehicle, Mauriceo Brown, would exit the car with a weapon and fatally shoot Michael LaHood. The paper noted that Foster's case is a prime example for why Texas lawmakers need to revisit and revise the state's current Law of Parties, observing:
Kenneth Foster Jr. is no model citizen. But he doesn't deserve to die.
If the state's "law of parties" statute does not permit the Texas Board of Pardons and Paroles and Gov. Rick Perry to realize that, the law is subject to Charles Dickens' characterization in Oliver Twist:
"'If the law supposes that,' said Mr. Bumble, ... 'the law is a ass -- a idiot.'"
...
Foster certainly is not more guilty than Mauriceo Brown, who fatally shot Michael LaHood in the early hours of Aug. 15, 1996, in San Antonio. Nor is he more guilty than DeWayne Dillard and Julius Steen, who were in the car smoking marijuana with Brown while Foster drove.
Foster did not get out of the car when Steen and Brown robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot. And Foster did not leave the car when Brown jumped out and shot LaHood after a brief verbal exchange.
Brown was executed July 19, 2006. Neither Steen nor Dillard were prosecuted for this case, although both are serving long prison sentences. Foster's trial lawyers never even interviewed them. Both were facing charges in other capital cases, and their attorneys nixed making them available to Foster's defense team, according to Amnesty International.
Texas law states that "if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it." Defendants can be held responsible for "failing to anticipate" that the conspiracy -- in Foster's case, the robberies -- would lead to another felony.
The "law of parties" is clearly about conspiracy and organized crime. Foster's case shows little organization, much less a conspiracy.
Four states other than Texas have "law of parties" statutes. But Texas is the only state that applies it in capital cases, making it the only place in the country where people can face the death penalty even though they didn't actually kill the victim.
The long-term solution is for the Texas Legislature to revisit the state's "law of parties" statutes.
That doesn't help Foster, who is scheduled for execution by lethal injection Aug. 30.
5 out of seven members of the Board of Pardons and Paroles must recommend clemency before Perry will consider it. We urge them to make that recommendation to the governor.
Foster might deserve to spend the rest of his natural life sitting behind bars. But to do that, he has to be alive.
(Fort Worth Star-Telegram, August 19, 2007)
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Boston Globe Editorial Asks "Whether Execution by Any Method Is Right"
Commenting on the recent halting of executions over the lethal injection controversy and DPIC's Year End Report, the Boston Globe raised the question of "whether execution by any method is right." Their editorial concluded that "[t]his hit-and-miss system offers no protection for society," and stated that a life-without parole alternative would "protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome." The entire editorial follows:
Rethinking the death penalty
THE UNITED STATES may be slowly ridding itself of the urge to impose the death penalty, according to a study released last week. A protracted execution in Florida on Wednesday starkly illustrated one of the reasons for the change in attitude.
Angel Diaz was the 53d and last person to be executed in the United States this year. He was strapped onto a gurney and given an injection that was supposed to kill him within 15 minutes, but he lay there squinting and grimacing, and seemed to be trying to speak. Prison officials had to give him a second injection, and it took him 34 minutes to die. .
Governor Jeb Bush promised an investigation and suspended executions pending the results, but the exact reason for Diaz's ordeal ignores the wider question of whether execution by any method is right. The murder took place in 1979, and any deterrent effect has vanished. Thousands of people have been murdered in the state since then, yet only 64 have been executed. This hit-and-miss system offers no protection for society.
Other states are starting to accept this reality, according to a survey by the Death Penalty Information Center in Washington, D.C. The 53 executions this year are down from 60 the year before, and 98 in 1999. The New Jersey Legislature imposed a moratorium on executions, and North Carolina and California began legislative studies of their systems. The issue gained urgency in Califonia last week when a federal judge ruled that the injection procedures followed there were so cruel that they violated the US Constitution.
Based on the Florida experience, it's easy to understand why states are wary. Florida abandoned the electric chair in 2000 in favor of lethal injections, but Diaz's prolonged death shows this method to be similarly inhumane. Even if a painless system were devised, the variation of sentencing across multiple jurisdictions is inherently arbitrary.
Support for capital punishment remains steady at two-thirds of those polled nationally, but when details are provided of the executions, that begins to erode. And when given a choice of execution or life without parole, a slight majority in a recent Gallup Poll favored the life sentence. This punishment would protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome.
Before he died, Diaz called his execution an act of vengeance. Perhaps, but given the 27-year lapse between crime and punishment, there was no public outcry for his death. His execution rather shows the capricious nature of a brutal act that should have no place in American society.
(Boston Globe, Dec. 19, 2006).
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Oregon Paper Calls Death Penalty a "Pointless Law"
The Albany Democrat-Herald in Oregon recently editorialized that the "death penalty isn't working," and concluded "that the death penalty here is a pointless law. If we’re not going to apply this law, then getting rid of it would be the less expensive course." The editorial cited the possibility of error, the arbitrariness of applying the punishment to some dangerous offenders but not others, and the difficulty of ever getting to an execution as reasons for ending capital punishment. The editorial follows:
Death penalty isn’t working
A group based in Portland wants to abolish the death penalty in Oregon. Maybe they would get more public attention if we had the death penalty in fact as well as in law, and if there was an execution now and then.
Oregon voters reinstated the death penalty twice in the last generation. The 2nd time, in 1984, we did it right, and the courts did not strike down the law.
Instead, the courts did something else. They strung out the appeals so that in the 22 years since the voters acted, not a single person condemned to death has been executed if he didn't want to be.
The only 2 executions that did take place involved convicts who refused to appeal their sentences beyond the mandatory reviews by the state Supreme Court. They evidently realized they were better off dead than spending the rest of their lives in prison.
More than 30 men are on "death row" at the Oregon State Penitentiary. One of them has been there since 1991. No executions are foreseen in the next 5 years.
It's not as though we don't have worthy candidates for capital punishment. Most (though not all) of the condemned men have been convicted not just of aggravated murder but other crimes as well, ranging from assault and burglary to kidnapping and rape.
But while these men deserve to die before their time, there are uncounted others in the prison system who deserve the same fate but are not getting it. Ward Weaver is just one example. He killed 2 girls in Oregon City in 2002. But then he avoided any death sentence by pleading guilty to murder. Now we're taking care of him in prison, and will do so the rest of his natural life.
Besides the lack of even-handedness, one of the other arguments against the death penalty is that someone may be convicted unjustly, and an execution in that case would irreparably compound a miscarriage of justice. Judging by the Oregon cases on death row, it hasn't happened here, but the possibility exists.
The way Oregon has been dealing with this statute — by showing no urgency at all in at least trying to expedite decisions on appeals — it is hard to avoid the conclusion that the death penalty here is a pointless law. If we’re not going to apply this law, then getting rid of it would be the less expensive course.
(Albany Democrat-Herald, Dec. 11, 2006).
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Another Major Newspaper Calls for End to Capital Punishment
Reversing its long-standing support for capital punishment, the Spokane Spokesman-Review recently published an editorial calling for an end to capital punishment in the United States. The paper noted that the decision to change its stance on the death penalty came after careful consideration of growing evidence that the newspaper's "expectations of fairness and justice" are not being met and that the death penalty's "drawbacks now outweigh its merits." The editorial in full:
It took Jermaine Herron seven minutes to die, but it took Texas seven years to kill him. "I'll tell you what the cruel and unusual punishment is," said Jerry Nutt, whose wife and son Herron shot to death, "it's the victims having to wait for justice."
Nutt doesn't realize it, but Herron's journey from sentencing in 1999 to death by lethal injection 11 days ago in Huntsville, Texas, was swift. Nationally, the average wait on death row is more than 10 years.
Consider Dwayne Woods, who was sentenced in Spokane County to die for beating Telisha Shaver and Jade Moore to death with a baseball bat. That was in 1997, and Woods is still on death row, even though he initially asked for the death penalty.
Among the industrialized nations of the world, only the United States and Japan allow capital punishment. Of the 26 members of NATO, only the United States and Latvia allow capital punishment – and Latvia is perceived to be moving toward abolition of the death penalty. Because of the delays, the inconsistency, the drain on the public purse and the nightmarish possibility of executing an innocent person, it is time for the United States to end the practice.
Duncan case
In Idaho, Joseph Edward Duncan III is scheduled to go to trial in October, accused of slaying Brenda Groene, her son Slade and her boyfriend, Mark McKenzie, a year ago at Wolf Lodge. Federal charges also are pending in the kidnapping of Shasta and Dylan Groene and Dylan's death in Montana.
If Kootenai County Prosecutor Bill Douglas convicts Duncan and wins the death penalty, which he says he'll seek, he'll still have years of effort cut out for himself and probably his successors. Kootenai County will spend millions of dollars and a decade or longer of legal work before Duncan or any other defendant convicted today is put to death. Of the 20 people now on death row in Idaho, seven have been there longer than 20 years.
Steve Groene, the father of Slade, Shasta and Dylan, has encouraged Douglas to drop capital punishment in a plea bargain for life in prison without parole. Other relatives of the victims disagree, says Douglas, thus calling attention to one of many reasons to question whether capital punishment is administered with the evenhandedness that the American justice system professes.
Once a murder has been committed, is execution justified by the circumstances of the crime – or by the disposition of the victim's survivors? Are those who die alone and abandoned less entitled to have the law's sternest penalty applied on their behalf than those whose parents, spouses and children can make a persuasive plea for retribution?
Justice delayed
While Supreme Court Justices Stephen Breyer and John Paul Stevens have questioned the constitutionality of lengthy delays between sentencing and execution, their colleague Justice Clarence Thomas wonders what else to expect when you "arm capital defendants with an arsenal of 'constitutional' claims with which they may delay their executions. ..."
Thomas' reasoning is appealing but deceptive. Those constitutional claims are protection against grim, irreversible mistakes. If Charles Fain, for example, had been put to death during his nearly 18 years on Idaho's death row, it would have been too late for the DNA tests that eventually proved the blood sample used to convict him wasn't his. In 2001, the same year Fain was freed in Idaho, Illinois Gov. George Ryan, his faith in the system shaken by a string of exonerations, imposed a moratorium on capital punishment in his state.
Unfortunately, mistakes and vagaries are more common in death cases than many law-abiding citizens like to think:
•Former Supreme Court Justice Sandra Day O'Connor, a supporter of capital punishment, worries about the competence of lawyers who represent defendants in capital cases. One study in Washington state showed that 20 percent of the lawyers whose clients received the death penalty had disbarments, suspensions or arrests on their records. O'Connor thinks lawyers who handle such cases should have special qualifications.
•Noting that serial killers like Gary Ridgway and Robert Yates Jr. in Washington have been able to bargain for life sentences in exchange for information about their crimes, state Supreme Court Justice Charles Johnson wrote: "No rational explanation exists to explain why some individuals escape the penalty of death and others do not."
•In some jurisdictions, budget-strapped prosecutors decline to seek the death penalty, not because of mitigating circumstances in the case but because of the cost. One study at Duke University concluded that it cost North Carolina $2.16 million more per execution than murder cases with a sentence of life in prison. Other studies have reached similar findings. Think of how many police officers that money could hire.
•Whether a murderer is executed probably has less to do with the circumstances of the crime than it does with the state where it was committed. Texas alone accounts for a third of the more than 1,000 executions in the United States since capital punishment was reinstated in 1976. Add Virginia and Oklahoma and it's more than half. Twelve states have no death penalty, and five others have one but have never used it.
Despite the death penalty's vaunted deterrent effect, the murder rate in the nine states that have executed an average of one or more defendants a year since 1976 ranges from 5.2 per 100,000 population to 12.7. It's less than 5 in 10 of the 17 states that haven't used the death penalty in the past 30 years. Nationally, the murder rate is about 8 per 100,000, about the same as in 1976, although it has fluctuated throughout that period.
No tears for killers
Society's worst offenders merit no sympathy. They'll get none here. If you're the victim of a crime, especially a murder that's ripped a jagged hole in your life where a loved one used to be, you have a right to be outraged and emotional. You're entitled to think of fundamental safeguards like due process and a presumption of innocence as annoyances.
It's not the victim's responsibility to be calm and dispassionate, but it is the law's. Courts must deal firmly and decisively with murderers, but that isn't happening under a scheme that deals out death penalties with whimsical unpredictability and makes victims wait years, even decades, for resolution.
Life without parole is a better solution. So-called BTK killer Dennis Rader and convicted 9/11 conspirator Zacarias Moussaoui have recently been dispatched to spend the rest of their lives in isolation. Political assassin Sirhan Sirhan and madman Charles Manson remain securely behind bars, sociological artifacts from another era. And their upkeep is a taxpayer's bargain compared with the endless legal expenses consumed by capital cases.
For those to whom the death penalty is an inviting way to even the score, life in prison with no parole may still be unsatisfying gruel. But the law is a compact that holds all of society to a set of expectations. Crime is a violation of the compact, a breakdown in social order. The court system is expected to restore order and to do it with efficiency and predictability. The goal is justice for all, not vengeance for some.
(Spokane Spokesman-Review, May 28, 2006) (emphasis added).
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Washington Supreme Court Closely Divided on Rationality of State's Death Penalty
The Washington State Supreme Court recently came within one vote of effectively abolishing the state's death penalty when it ruled in the case of death row inmate Dayva Cross. Cross is on death row for the murder of his wife and her two teenage daughters. Attorneys for Cross had argued that their client should not be executed because killers who had committed worse crimes had been spared the death penalty. The 2003 case of Green River Killer Gary Ridgway, who received a life sentence in exchange for a detailed confession about killing 48 young women, was among the chief examples used by Cross' attorneys. The court's 5-4 ruling upholding Cross' death sentence revealed a deep division about the future of the state's law. Writing for the majority, Justice Tom Chambers said the "moral question" of whether those on death row can be executed while a notorious serial killer is given life is best left to state lawmakers or the people of Washington. A dissenting opinion authored by Justice Charles Johnson stated, "When Gary Ridgway, the worst mass murderer in this state's history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not 'stand alone,' as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty. . . . The death penalty is like lightning, randomly striking some defendants and not others. Where the death penalty is not imposed on Gary Ridgway, Ben Ng and Kwan Fai Mak (the latter two convicted in Seattle's 1983 Wah Mee massacre), who represent the worst mass murders in Washington's history, on what basis do we determine on whom it is imposed? No rational explanation exists to explain why some individuals escape the penalty of death and others do not." An editorial in the News Tribune echoed the dissenting justices' opinion, stating:
Since the 1960s, Washington has executed only 4 condemned murderers - and three of those sought death by refusing to appeal their sentences.
The rarity of executions speaks well of this state. But it has created a new grounds of appeal: that there is no logic or consistency in the way death penalties are handed down and carried out in Washington.
. . .
We're reluctant to argue for abolishing Washington's narrowly drawn death penalty, which reflects the will of the electorate. But Johnson's argument is hard to ignore in a state whose laws generally call for proportionate sentences for similar crimes.
With the likes of Ridgway, Ng and Mak living out their lives in prison, Dayva Cross’ execution - if it ever happens - may well be the legal equivalent of a capricious bolt of lightning.
(News Tribune, April 2, 2006 and Seattle Post-Intelligencer, March 31, 2006).
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The Birmingham News Changes Its Position on the Death Penalty
In an editorial in its Sunday, November 6 edition, the Birminham News announced that "After decades of supporting the death penalty, the editorial board no longer can do so." The paper cited both practical and ethical reasons for the change in its stance: "[W]e have come to believe Alabama's capital punishment system is broken. And because, first and foremost, this newspaper's editorial board is committed to a culture of life. . . . We believe all life is sacred. And in embracing a culture of life, we cannot make distinctions between those we deem 'innocents' and those flawed humans who populate Death Row." The paper plans to expound on the basis for its call to end the death penalty over the next five days. The editorial noted the number of innocent people freed from death row in Alabama and around the country, and also called attention to the problem of arbitrariness in death sentencing:
At the heart of what has happened in Illinois and elsewhere - including Alabama - are disturbing questions about the fallibility of our justice system.
. . .
The factors that determine which cases end with death are arbitrary. The prestige and wealth of defendants, the quality of their defense, even the race of their victims can play into the outcome of a case. While blacks are far more likely to be murder victims, the overwhelming number of murders that lead to a death sentence involve victims who are white.
("A Death Penalty Conversion," Birmingham News, Nov. 6, 2005).
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Palm Beach Post: Plea Bargain Underscores the Arbitrariness of the Death Penalty
While applauding a life-sentence plea bargain arranged by Palm Beach County's State Attorney in an especially heinous murder, the Palm Beach Post said the state had "forfeit[ed] the moral standing to execute anyone else." The State Attorney said that he agreed to let the defendant plead guilty to killing 5 people because the life-without-parole sentnece will bring finality. The Post noted: "The state saves not only the cost of a trial; the victims' relatives - who supported the deal - do not have to relive the horror. The state will save more by avoiding years of appeals; all credible research shows that incarceration is far cheaper than litigation. Most important, [the defendant] never again will threaten the public.". . . "But," the paper further stated, "[i]t is impossible to craft a law that reserves capital punishment for only a certain class of criminal. Because Florida and the 37 other states where the death penalty is legal won't accept that fact, governments waste untold millions each year on post-conviction appeals over whether the facts of the case support the ultimate punishment."
(Palm Beach Post Editorial, December 16, 2004).
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USA Today: Death Penalty Distorts the Judicial System
In an editorial published after a Virginia jury recommended a death sentence for John Muhammad, USA Today noted that the case of Muhammad and his juvenile co-defendant "undermines public confidence that the law is applied objectively." The editorial criticized the manipulative placement of the case into Virginia courts and the stretching of Virginia's law to achieve the death penalty. Usually, Virginia has required that the defendant be the actual shooter to be eligible for a death sentence. And Virginia's new terrorism law may have been expanded considerably beyond its original intent for this case:
In this instance, the bending of the system began early. After the arrests of Muhammad and his teenage companion, Lee Malvo, Attorney General John Ashcroft seized control of the suspects. Though the pair had been caught in Maryland, where most of the killings occurred, federal authorities handed them over to Virginia for trial. One unvarnished reason was that Malvo was a juvenile. Maryland does not permit the execution of juvenile offenders. Virginia does.
. . .
Shopping for the most pro-death judicial venue and then custom-fitting new and existing laws to ensure what Ashcroft calls the "ultimate sanction" make prosecutors and law enforcement officials look as if they were willing to go to great lengths — and even stretch the law — to achieve a death-penalty conviction.
. . .
But twisting justice wasn't necessary to protect the nation and punish the criminal. Life without parole would have served equally well.
. . .
The overzealous application of Virginia's death penalty laws means that Muhammad's case is likely to command the nation's attention through years of appellate maneuvering. Life without parole would have forestalled that tedious endgame without ever calling into question the integrity of the judicial establishment.
(USA Today, November 25, 2003) See DPIC's report on the Politicization of the Death Penalty: "Killing for Votes".
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From the New York Times -- Editorial on Sniper Case
A recent New York Times editorial noted that competing interests to try Washington, D.C.- area sniper suspects John Muhammad and Lee Malvo based on the odds of securing a potential death penalty "demeans the justice system" and "smacks of Alice in Wonderland justice." The paper noted:
The Justice Department and prosecutors from Virginia and Maryland are engaged in unseemly jockeying over who will be first to try the accused Beltway snipers, John Muhammad and Lee Malvo. It demeans the justice system for the decision to turn on politics, prosecutorial ego or, worst of all, a capital-punishment bidding war, in which the case goes to the jurisdiction deemed most likely to execute the defendants.
. . .
It is troubling that a key consideration appears to be which jurisdiction seems most likely to impose the death penalty. (The federal government has executed two people since 1976, Maryland three, but Virginia far outstrips both, with 86 executions.) There is also wrangling over how likely it is that Mr. Malvo, age 17, will be eligible for execution. Focusing on any penalty at this point smacks of Alice in Wonderland justice. "Sentence first," the Queen declared, "verdict afterwards." It is also the wrong way to decide. In our federal system, the states are free to make their own choices about sentencing. Maryland should not be discriminated against simply because it takes a more restrained approach toward capital punishment.
(New York Times, October 30, 2002)
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An Editorial by the New York Times Considers the Death Penalty in Light of Recent Studies Conducted at Columbia University:
America's death penalty system is badly broken. Just how broken was underscored two years ago when a study of capital appeals by a team at Columbia University unearthed the fact that fully 68 percent of all death sentences reviewed by appellate courts between 1973 and 1995 were reversed because of serious error.
A new follow-up study by the same researchers finds that states and counties that make most use of the death penalty - applying it to a wide range of crimes instead of reserving it for "the worst of the worst" - are also the most prone to flawed verdicts. When it comes to the death penalty, as Senator Patrick Leahy, the Vermont Democrat, has observed, practice does not make perfect.
(New York Times, editorial, 2/23/02)
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The USA Today, the Washington Post and the New York Times Each Expressed Concern About the Application of the Death Penalty in Light of the Justice Department's Belated Acknowledgment of over 3,000 Pages of Materials Related to the McVeigh Case:
[This] error illustrates that the capital system is far more prone to error than its defenders admit. If the federal government can't prosecute a slam-dunk case without making potentially prejudicial mistakes, imagine what's happening in the states, where capital crimes are tried by less-skilled lawyers with fewer resources. . . If McVeigh can't be cleanly convicted and condemned with all of the resources of the federal government, it's certain that the states are also making errors and that not all of them are being discovered. A sentence of life without parole obviates the fear of killing an innocent person that can accompany the death penalty
. . .
The death penalty requires infallibility, which relies on perfect jurisprudence. McVeigh may be as guilty as sin, but rushing an execution isn't the path to justice. It is the path to greater error.
(USA Today, 5/16/01).
The new material isn't likely to cast Mr. McVeigh's conviction in a different light. But if this type of error could happen even in this case, which has been under the closest of public scrutiny since the moment the bomb went off, think what must happen in countless cases -- particularly at the state level -- in which nobody is watching carefully. The death penalty relies on complex interactions of human systems, any one of which can fail in any given case.
. . .
[T]he incident shows once again the likelihood of error and caprice. To have a death penalty means, in practical terms, accepting that mistakes will be made and that they will be, at least in some cases, discovered too late.
(Washington Post, 5/12/01)
Beyond Mr. McVeigh, and the serious problems with the F.B.I., this episode has exposed yet another imperfection in the justice system that calls into question this nation's reliance on the death penalty. People have been executed because of inadequate legal representation, corrupt or inaccurate scientific evidence, faulty eyewitness testimony and racial prejudice. Now there is the added danger to worry about of defendants being sentenced while evidence relevant to their cases sits unreviewed in government files.
(New York Times, 5/12/01)
For those who voted in lockstep to defeat Mr. White...this was not a vote of principle. It was, transparently, a political favor for Missouri's...Senator, John Ashcroft, who is facing a tough re-election battle and trying to gain an edge using the death penalty issue. By ganging up on Mr. White for failing to rubber-stamp the prosecution in every case, Senate Republicans have undermined judicial independence.
(New York Times, 10/8/99)
The Senate did not consider whether [White's] objections in those few death penalty cases in which he dissented were actually valid. Apparently the Republican caucus has decided that ever dissenting in a death penalty case makes one ineligible to serve on the federal bench.
(Washington Post 10/8/99)
One couldn't ask for a better portrait of the arbitrariness of the death penalty than the recent clemency decisions by Missouri Gov. Mel Carnahan.
. . .
Gov. Carnahan ended up granting clemency in a case with no significant question of innocence and denying clemency in a case where questions remain about the evidence. Who gets executed should not, in a sane criminal justice system, depend upon the pope's travel schedule.
(Washington Post 3/20/99)
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Regarding the Visit of Pope John Paul II to Missouri and His Condemnation of the Death Penalty:
Governor Carnahan [of Missouri] did the right thing in sparing Darrell Mease at Pope John Paul's request; his only mistake was not extending the logic of his one act of compassion into the future. As the governor himself conceded, it was chance that saved Darrell Mease - in his case, a most unusual chance. But it is always chance that decides who lives and who dies in the roulette of state-run executions. In the first place, it is the chance of birth - those on death row tend disproportionately to be minorities. It is also the chance of financial circumstances in determining legal representation (the rich can afford the best lawyers). And it is a hundred other chances - turning on such things as whether the local district attorney is aggressive about seeking the death penalty. This deadly game of chance does not only affect the guilty but also the innocent.
. . .
Pope John Paul II is right to oppose capital punishment. With no recourse once the chemicals flow or the power surges, society cannot leave justice to chance and still call itself civilized.
(Pittsburg Post-Gazette 2/11/99)
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Kansas City Star Editorial on the Death Penalty
The death penalty, in this and every other capital crime, requires the state to stoop to the level of the criminal. So Carnahan was right to commute Mease's sentence. But by doing so the governor highlights the inherently unfair inconsistencies of capital punishment. The pope, after all, cannot be expected to come to Missouri (or Texas or other states) to make a personal appeal each time a criminal is scheduled to die. Is it fair for the state to kill prisoners because the pope failed to show up in time to argue against it?....The pope is right. In responding, the governor was right. And Missouri could be right too, by abolishing the death penalty."
(Kansas City Star 2/5/99)
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