New Voices - Academics

Author of Arizona's Death Penalty Law says Time is Ripe for a Re-Examination


Rudolph J. Gerber served as a prosecutor and as a judge on Arizona's Court of Appeals for 13 years. Earlier in his career, then-state senator Sandra Day O'Connor asked Mr. Gerber to draft the statute that eventually became Arizona's death penalty law. In a recent op-ed in the Sacramento Bee, he expressed his concerns about the practice of capital punishment and said that states should use the present period in which no executions are occurring as an opportunity to re-examine their commitment to the death penalty.  Excerpts from his article follow:

The [Supreme] court's ruling Wednesday on lethal injection will undoubtedly prompt some eager politicians to schedule executions in the immediate future. The disparity of opinions in that decision - seven differing opinions by the nine justices - suggests, however, that the topic of capital punishment remains such a hot-button issue that agreement on principle and method still escapes us. In particular, Justice John Paul Stevens' opinion ought to give pause to resuming executions: The conservative Republican (when appointed) now says after 33 years on the court, that our executions fail both constitutional and practical tests, and ought to end.
. . .
The halt in executions does demonstrate that the death penalty is not essential to our society. Many people are probably unaware, as its absence has no effect on people's daily lives, that the death penalty has been on hold since September.

The cases, however, are stacking up. At some point, executions may resume in greater numbers than we have been used to. This present period of quiet could be used to reflect on whether the death penalty is doing us any good.

Only 10 states had executions in 2007. The overwhelming number of executions carried out occurred in just one state - Texas. Are the residents of those states with no executions any less safe than the inhabitants of the few states in which executions occurred?

The death penalty without executions is just another term for life without parole. Based on opinion polls, that is already the punishment of choice for the public, and that is the typical punishment that all but a small percentage of people convicted of murder receive.
. . .
Some states have abandoned capital punishment; others may be moving in that direction. In December, the New Jersey legislature voted to end the death penalty; it had not carried out an execution for more than 40 years. It is estimated that capital punishment cost New Jersey $250 million since executions resumed in 1976. The savings can be used to help crime victims and on a host of crime prevention programs.

New York has also given up on capital punishment. It will save tens of millions of dollars that the state spent on the cost of prosecuting and defending capital cases.

North Carolina, Tennessee and California have initiated studies of their death penalty systems.

In other states, the death penalty remains on the books, gathering dust and absorbing millions of dollars, but is rarely carried out. The death penalty is overdue for examination as a public policy - its burdens and alleged benefits should be fairly weighed. For many years, we have only considered the death penalty in theory - whether it might be appropriate for the most horrible crime. But the death penalty in practice is what needs to be examined. The pause in executions presents an excellent opportunity to consider if we need to continue this practice any longer.

(R. Gerber, "Let's stop, reconsider: Should executions continue?", Sacramento Bee, April 21, 2008). See Lethal Injection.

Leading Criminologist Recommends Halt to Executions as Public Policy Priority

The journal of Criminology & Public Policy recently asked leading experts to recommend important policy changes needed in the area of criminal justice and to provide the evidence to support such change. Although most of the articles addressed various prison and treatment issues, the first article by Prof. James Acker (pictured) of the University at Albany called for an immediate moratorium on executions. Prof. Acker examines the United States' long history of grappling with the death penalty. He concludes that “sufficient evidence now exists regarding the effectiveness of the death penalty and evaluating its administration to call, at a minimum, for an immediate halt to executions” while states re-evaluate their death penalty policies.

Acker finds flaws with some common perceptions used to support the death penalty. He notes that studies on the deterrent effect of the death penalty have been inconclusive. Likewise, capital punishment fails to provide closure or a sense of justice to the family and friends of victims, especially since executions occur in less than 2% of murder cases. Along with the high costs of the death penalty, concerns about the quality of defense counsel, arbitrariness, and wrongful convictions are all elements of the death penalty that need to be carefully weighed when examining public policy. New Jersey, he writes, has already undertaken such a deliberation, and its Death Penalty Study Commission reached the conclusion that the death penalty should be abandoned and replaced with life imprisonment without parole.

("Impose an Immediate Moratorium on Executions" by James R. Acker, 6 Criminology & Public Policy 641 (November 2007)). Posted Dec. 4, 2007.

Supreme Court Review of Lethal Injections Attracts Advocates from Many Disciplines

In addition to the main brief submitted by the Petitioner in Baze v. Rees, several amicus curiae briefs have been filed in support of the inmates from Kentucky who are challenging the constitutionality of lethal injections as practiced in their state before the U.S. Supreme Court. The case is likely to be heard in January 2008 and decided by June. It appears that executions around the country have been put on hold pending the Court's decision.

The amicus (“friend of the court”) briefs submitted include:

  • The Death Penalty Clinic at the U.C. Berkeley School of Law. This "litigants" brief details how lethal injection executions are performed by "untrained, unqualified prison employees using inadequate equipment and following incomprehensible protocols." The Clinic surveyed thousands of pages of documents from more than a dozen states, concluding that states have "turned a blind eye" to the forseeable problems inherent in the three-drug lethal injection formula.
  • The Lewis Stein Center for Law & Ethics at the Fordham University School of Law. This brief describes the history of the three-drug lethal injection protocol used in virtually every death penalty state, and the movement toward methods of execution that were consistent with “evolving standards of decency.” The brief presents evidence that the present method of lethal injection was not the result of an informed deliberative process.
  • The American Civil Liberties Union and the Rutherford Institute. Arguing that lethal injections violate the Eighth Amendment, this brief shows how “lethal injection procedures and executions have been, and continue to be, shrouded in secrecy.”
  • Physicians and nurses, with a range of expertise in fields such as medical ethics, critical care, end-of-life care, pharmacology and anesthesiology. The brief informs the Court that "the medical and medical ethics communities have rejected the introduction of neuromuscular blocking agents" used in lethal injection executions because of the "significant risks" that they pose.
  • Veterinarians, with extensive experienced in veterinary anesthesia. According to this brief, “Kentucky’s lethal injection protocol would not meet the minimum standards for the humane euthanization of animals.” The brief further explores other risks associated with the chemicals used in Kentucky’s current protocol.
  • Human Rights Watch. The brief argues that the Court’s “Eighth Amendment jurisprudence has looked to international standards and practices in giving meaning to the prohibition against cruel and unusual punishment,” and that it should do so in deciding Baze.

The briefs filed by various amici, as well as the Petitioner's brief, are available here. (Source: Death Penalty Clinic, U.C. Berkeley School of Law, Nov. 13, 2007).

Scientific Experts Say DNA Evidence Not "Infallible"

Scientists who are skeptical of Massachusetts Governor Mitt Romney's claim that DNA is "infallible" evidence in a death penalty case have voiced concern about the assumption, noting that there is no way to avoid all possible instances of human error and that the evidence does not always prove a person's guilt or innocence. Theodore D. Kessis is the founder of Applied DNA Resources, based in Columbus, Ohio, and a faculty member at the John Hopkins School of Public Health in Baltimore. He provides expert testimony and analysis to the legal community, including reviews of protocols used by labs that analyze DNA evidence, and notes, "[L]ike anything that involves humans, there is always the possibility of error in DNA testing. I would not go so far as to say that DNA is foolproof. The spectrum of a DNA test may range from foolproof to something's wrong here. DNA testing is a tool, and how that tool is used in a criminal trial may depend upon what you are trying to prove. Don't misunderstand me, DNA is an invaluable tool. But in and of itself, DNA cannot tell you who committed a crime." Dean Wideman, a forensic scientist from Texas, echoed Kessis's concerns and noted that DNA evidence has its limitations. "DNA evidence has been used to acquit as often as convict... What it doesn't tell us is the stuff that lawyers are good at using - it doesn't tell us whether semen left is the result of rape or consensual sex. It doesn't tell us what time a person was at a scene. It does not tell us why a person was at a scene... For all we hear about DNA evidence, oftentimes it is not going to move a case in one direction or another," he said.

(Cape Cod Times, May 6, 2004)

Opposing Viewpoints Find Common Ground

Although New York Law School Professor Robert Blecker and Columbia Law School Professor James Liebman (pictured) frequently take opposing sides in public debates on the death penalty, the two men recently revealed their "common ground" through a co-authored opinion column in the Houston Chronicle. Calling on legislators in Texas and elsewhere to enact a series of death penalty reforms to ensure accuracy and improve fairness, Blecker and Liebman noted:

Despite our different perspectives, we agree that death as a punishment should be inflicted, if at all, only upon the worst of the worst; that society can incapacitate without killing, so future dangerousness and deterrence alone are never sufficient reasons to punish someone with death; and that a state-ordered execution is a terrible, solemn act that should occur only after the greatest deliberation.

Limiting the scope of crimes eligible for the death penalty, addressing racial bias, improving access to qualified attorneys and DNA testing, and passing comprehensive reform packages were among the recommendations made by Blecker and Liebman.

(Houston Chronicle, May 23, 2003)

UNC Chancellor Encourages Death Penalty Debate

The new University of North Carolina Chancellor, James Moeser, urged the university to take on important social issues, including the death penalty. "How long will America be the last great nation of the developed world to practice capital punishment?" asked Moeser in his first "State of the University" address. (Durham Herald-Sun, 9/5/01)

UNC Law School Dean Describes North Carolina Death Row Inmate's Representation by Alcoholic Lawyer

In a recent op-ed, Gene R. Nichol, Dean at the University of North Carolina School of Law, described death row inmate Ronald Wayne Frye's attorney's behavior during trial: Every night after the trial recessed, instead of preparing for the next day, the lawyer went home and drank a bottle of rum. According to his own testimony, Frye's counsel consumed at least 12 shots of 80-proof rum every evening, beginning around 5 and continuing until he fell asleep or passed out. He drank a good deal more on the weekends. And these admissions likely understate the case. When the lawyer was involved in a car wreck during the same time period, his blood-alcohol level was a near-lethal 0.436 percent -- even though it was 11 in the morning and he hadn't had anything to drink in hours. (News and Observer, 8/22/01)

Frye was executed on August 31, 2001 despite the fact that his attorney was drinking heavily every day of the trial. Probably because of the drinking, the attorney failed to present much of the evidence of the severe abuse that Frye suffered as a child. See also, DPIC's Press release.


-photo of Ronald Frye, age 9, showing abuse marks (never shown to jury)

Op-Ed by Anthony Amsterdam* in The Los Angeles Times

In light of the recent U.S. Supreme Court's decision in the Florida election case overturning the Florida Supreme Court, Professor Anthony Amsterdam reflected on the high court's death penalty decisions:
"In 1983, a majority of the Supreme Court rejected a claim by a condemned Florida inmate that the Florida courts had violated his federal constitutional rights by flagrantly disregarding clear, long-settled rules of Florida law in sentencing him to death. The U.S. Supreme Court opinion, written by Justice William Rehnquist, declared that the federal courts and the federal constitution could have nothing to do with the matter, because Florida law is whatever Florida courts say it is, and their interpretations of Florida law are unreviewable by federal Supreme Court justices.
. . .
To take human life by decisions made in this way -- as the court has done again and again in the past 2 decades -- is among the greater crimes for which the court can now be held accountable on the record it has made for history and eternity." (12/17/00)

* Professor Amsterdam (pictured) argued and won the pivotal case of Furman v. Georgia, which stopped the death penalty temporarily in 1972.

A Choice

Ronald Dworkin, professor of jurisprudence at Oxford University and professor of law and philosophy at New York University, wrote in the Los Angeles Times:
"The Supreme Court has become impatient, and 'super due process' has turned into 'due process-lite.' Its impatience is understandable, but it is also unacceptable. If Americans insist on the death penalty, they must accept the moral consequences of their choice.
Judges must listen, with painstaking and patient attention, to every argument for life that is not plainly frivolous. If they find any actual mistake in the process that has condemned a human being to death, they must repeat that process and give him another chance for life. These are inescapable moral demands.
What if we cannot meet these demands? What if we cannot tolerate all the stays and appeals and retrials that a decent respect for human life requires without making the law seem foolish and without subverting the point of a death sentence?
Then we must abandon capital punishment, even if we think it right in principle, because then we cannot have it, even if it is right, without cheating."

(Los Angeles Times, 7/11/99)

Clinical Professor of Surgery at Yale University Sherwin B. Nuland concerning the electric chair and the Supreme Court's upcoming review: "Even when it functions exactly as it should, the electric chair is a brutal killer. . . . Unless revenge is what our society wants -- and some would indeed say that such a goal is justifiable -- the court's path is clear: the electric chair should be forbidden. The answer is as simple as that." (Cruel and Unusual, Op-ed, N.Y. Times, Nov. 9, 1999)

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