Politics and the death penalty
Federal v. state death penalty
The US Supreme Court and capital punishment
The evolution of criminality
New trends and denunciations

Conflicting signals have come from the United States over the past few months regarding the criminal justice system and application of the death penalty. A number of surveys which have been amply reported by the print press and have spurred comments in Congress and in the nation, have evinced the shortcomings of the system: its arbitrary character as well as geographical, racial and social discrepancies, would tend to prove that the Fourteenth Amendment’s equal-protection clause, which affirms citizens’ equality before the law, is blatantly violated. However, signs of an increasingly intractable stance have appeared in some states: not only has the number of death row inmates been increasing but so has the pace of executions, especially in Texas. According to Stephen Bright, director of the Southern Center for Human Rights, the state’s Court of Criminal Appeals has been running "the fastest assembly line to the death chamber in the country" (Interview with the Atlanta Journal Constitution, June 11, 2000 – http://justice.policy.net/proactive/newsroom/release.vtml?id=18280). On top of this, people who were minors when they committed their capital offense, and mentally-retarded convicts have been, or may soon be, put to death, in violation of international such as the 1989 United Nations Convention on the Rights of the Child.

This article aims at exemplifying the two contradictory trends, which again provide evidence of the current polarization of US society. It will also attempt to clarify the evolution in the majority attitude to capital punishment in recent years. 

Politics and the death penalty

Since the 1980s, the decade when crime and safety were placed high on the (Republican) agenda, and when the solution opted for was the building of more prisons and "the celling of America,"(Cf. the book by Daniel Burton-Rose, Common Courage Press, 1998) the stand or record of candidates for public office on capital punishment has always been a litmus test allegedly allowing the citizen to cast a wise ballot. George Bush Sr.’s 1988 advertising campaign portraying his opponent, Michael Dukakis, as "soft on crime" is generally cited as one of the reasons why the Democrat, who opposed the death penalty, lost the 1988 election. While Dukakis served as governor of Massachusetts, a convicted murderer who had been allowed out of jail under a furlough program, raped a woman, and Bush advertisers made the most of it. During the next (1992) presidential campaign, then-Arkansas Governor Bill Clinton, who supports the death penalty, approved the execution of a mentally-retarded convict, Rickey Ray Rector, thereby passing the litmus test. 

The death penalty was not an issue in the 2000 campaign: both major candidates have expressed support for it. Vice President Al Gore and Texas Governor George W. Bush are not equally supportive of capital punishment, though. That Al Gore advised President Bill Clinton to spare the life of Timothy McVeigh, the terrorist condemned for killing 168 people by bombing a federal building in Oklahoma City (April 1995), would seem to imply that the Democrat could fairly easily be convinced to join the anti-death penalty camp. Indeed at the time of McVeigh’s federal trial in 1997, even the staunchest foes of capital punishment were willing to condone a death sentence for the accused, inasmuch as he had benefited from every protection against error and, despite his utterly despicable crime, failed to show even a shadow of regret. 

If Al Gore’s position seems not to be deeply entrenched, the same cannot be said about the governor of Texas’s: his commitment to seeing death sentences executed as speedily as possible has been amply commented on, in the press and by the GOP nominee himself. Governor Bush’s refusal to go against decisions made by jurors, the people’s representatives, might have been inspired by democratic convictions; but his "blind" faith in the Texas justice and capital punishment systems, regardless of the many surveys which have pointed to its shortcomings, is far more questionable. Furthermore, Governor Bush’s avowed habit of waiting until execution day to review a death row inmate’s file, and of spending an average of fifteen minutes perusing the file, hardly squares with the reputation of a "compassionate conservative" he would like to have. Mr Bush is the governor who has approved the highest number of executions in US history — and who allowed Karla Faye Tucker to be given a lethal injection in February 1998 despite a flood of pleas for clemency from all over the world, including the Holy See. 

It might be objected that under Texas law, the governor has his hands almost tied: he may not commute a death sentence, or even grant a reprieve, unless the State Board of Pardons and Paroles signals he may do so; besides, he is authorized to grant a death row inmate no more than one 30-day reprieve. The following information, however, will prove that the chief executive does have some leeway and has used it in his on way: (1) it was George W. Bush who appointed the 18 Board members; (2) since he took office, he has not convened them once: they have made their decisions individually, without hearing the convicts or their lawyers, and have reported their choices merely by ticking "yes" or "no" on a form; (3) In addition, Governor Bush has vetoed a bill that would have brought more fairness to the Texas indigent defense system (see S. Kauffmann, Le Monde, 22-23 Oct. 2000, 4). In view of this clear record, George W. Bush’s decision, in August 2000, to grant his first reprieve, may have been prompted by the stakes of the presidential campaign. Polls have shown that, while a majority of Americans favor "the ultimate penalty" for capital crimes, the percentage has been decreasing. As all analysts had forecast a very tight election, candidate Bush and his advisers may have concluded that his intractable stance might alienate some voters, and that a limited gesture of "compassion" (the reprieve was meant to make it possible for DNA tests to be performed) could not hurt his prospects. 

George W. Bush has summarized his stance in the following terms: "I support the death penalty because I believe, if administered swiftly and justly, capital punishment is a deterrent against future violence and will save other innocent lives." Yet, as numerous studies have proved that the death penalty is no deterrent against crime, the only person whom the death penalty will unquestionably dissuade from killing again will be the person executed. The same objective might be achieved through life imprisonment without parole, but the governor will retort that Texas is one of the states whose penal codes do not provide for that option.

This article is not aimed at listing the numerous reasons why the death penalty may be seen as contradicting the basic tenets of democracy: the reader will find Tufts University Professor Hugo Adam Bedau’s "Case against the Death Penalty" well worth reading [http://ethics.acusd.edu/Bedeau.html]. The "Case" lists eight objections to capital punishment: it is (1) not a deterrent to capital crimes; (2) unfair; (3) irreversible; (4) barbarous; (5) unjustified retribution; (6) more expensive than incarceration; (7) less popular than the alternatives; (8) widely viewed as inhumane and anachronistic. The author concludes that the death penalty violates the Eighth Amendment which bars "cruel and unusual punishment," as well as the Fifth and Fourteenth Amendments’ guarantees of due process of law and equal protection under the law. Aside from the polls which have consistently pointed to decreasing popular support, the sheer number of Web sites devoted to the issue, to arguments in favor of abolition, and to calls for a moratorium on executions is proof that a wind of change might currently be blowing, at least outside the South.

Federal v. state death penalty

It is misleading, or at least improper, to claim that "the United States" still applies the death penalty. If this is remark is to be interpreted properly, then it refers to the federal death penalty statutes. They cannot be ignored, and were even reinforced in the 1990s [see the chronology below]. As for application of these statutes, it must be stressed that 31 federal death row inmates have been executed since 1927, but that not a single execution has been performed since 1963 [see the resources of the Death Penalty Information Center, http://www.deathpenaltyinfo.org]. This seems to belie the impression aroused by the Texas reality. It must be added, however, that the first federal execution in the last 37 years was to have been performed this year, on 15 Nov. 2000. The convict, David Paul Hammer, has been granted a stay of execution to file an appeal by 31 Jan. 2001 (he had initially waived his right to appeal). Significantly, another federal execution, initially scheduled to take place on 12 December this year, has recently been delayed: marijuana-trafficker Juan Garza, convicted of committing one murder and of ordering two more, was granted a six-month reprieve by President Clinton on 7 December. 

Application of the death penalty by federal courts is scarcely immune from problems, including geographic or racial disparities: opponents have been claiming that Garza’s sentence epitomizes discrimination against minorities in the imposition of capital punishment. Yet the chief criticisms have been targeted at state practices. The issue is to be placed in the context of American federalism: state legislatures and governors are free to enact (as New York did in 1995) or abolish (as the New Hampshire Legislature tried to do this year, in a bill subsequently vetoed by the state’s Democratic governor) death penalty statutes, implemented by state courts. Federal courts can only intervene on appeal, i.e. they may reverse a state court verdict or sentence if they find it faulty, in violation of due process of law; federal courts can also examine convicts’ habeas corpus petitions. Since New York’s shift five years ago, 38 states of the Union out of 50 have had the death penalty in their penal code. The other states are: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. 

What the chronology first signals is the ups and downs of support for, and imposition of, the death penalty in the US. While the 1930s marked an all-time high of 167 a year on average (as against 98 in 1999, the highest number in the 1990s), in the 1960s executions registered a steep decline, and abolitionists argued that capital punishment was in contradiction with the "standard of decency" which the Supreme Court had found the Eighth Amendment to imply ("an evolving standard of decency that marked the progress of a maturing society," Trop v. Dulles, 1958). Thus, when in 1972 the US Supreme Court, under Chief Justice Warren E. Burger, addressed the issue of disparities in the application of capital punishment by invalidating existing state laws, the ruling was the logical outcome of a process that had developed over a decade. The Court found that the ultimate punishment was meted out arbitrarily, trampling on condemned convicts’ right to due process of law, but stopped short of declaring the death penalty unconstitutional per se, i.e. of proclaiming that it was a form of "cruel and unusual punishment." Neither did the Court argue that the existence of the death penalty in some states violated the Fourteenth Amendment’s "equal protection clause," which guarantees the equality of all citizens before the law. Indeed the Amendment requires each state government to see to it that their citizens are treated equally, but does not demand that states adopt the same penal code. Besides, since the death penalty also exists at the federal level, a form of equality is preserved. Without trying to downplay Furman, therefore, one may conclude that the Court, in effect, simply sought to put some order in the existing array of varying statutes. And so it was interpreted by the states, which hastened to overhaul their capital sentencing legislation without taking the step of abolishing the death penalty. Four years later the Supreme Court duly validated the new laws, despite vigorous dissents by liberal Justices William Brennan and Thurgood Marshall, for whom capital punishment per se violated the Eighth Amendment.

From 1977 to 1983, as evinced by the chronology (see also Callins v. James, in which Justice Blackmun reviews the Supreme Court’s death penalty decisions) the Court was sensitive to the rights of the condemned and ruled accordingly, striking down a number of practices that interfered with these rights. The "Republican decade" (i.e. the election of two GOP chief executives, Ronald Reagan in 1980 and George Bush Sr. in 1988), however, led the Court to take a decisive turn to the right. President Reagan first had a chance to appoint Sandra Day O’Connor, who supports the death penalty; then, by entrusting Chief Justice Warren Burger with the mission of preparing for the centennial of the Statue of Liberty, he was able to promote Justice William Rehnquist to the position of chief justice, and to appoint Antonin Scalia to replace him. Both appointees are staunch conservatives, favor the death penalty, advocate keeping the federal government within strict bounds and, as regards justice, deferring to state court decisions. Although his votes have been less predictable than the latter two justices’, the last Reagan appointee, Anthony Kennedy, has reinforced the conservative bloc on the Bench. But regarding the death penalty, opposition was significantly toned down by the retirements, in 1990 and 1991 respectively, of Justices Marshall and Brennan. Another conservative diehard, Clarence Thomas, was chosen by President Bush to replace liberal Justice Marshall; analysts agree that since his appointment he has been Justice Scalia’s most faithful ally. As for William Brennan’s seat, it has been taken by a Clinton appointee, Ruth Bader Ginsburg, a liberal if compared to her most conservative colleagues, but hardly as committed an opponent of capital punishment as Justice Brennan was. The last, but in his later years on the Court most forceful, voice against the death penalty, Justice Blackmun (see his stinging dissent in Callins v. James), retired in 1994: Stephen Breyer, chosen by Bill Clinton to take his seat, is more interested in economic issues than human rights: his stand on capital punishment is far less clear-cut than his predecessor’s, though he — and Justice Ginsburg — dissented in Buchanan v. Angelone. Today, all in all, the justice most likely to consider habeas corpus petitions favorably is the 80-year-old John Paul Stevens, a Nixon appointee who is expected to retire shortly.

The Associated Press The New York Times, 5 Dec. 2000

To put it in a nutshell, a majority of the present justices are convinced that capital punishment is constitutional and that, though the federal courts are to make sure it is applied in ways that do not blatantly infringe on the Constitution, the state courts should continue to have broad discretion in applying it. Most of the burden of review should be left to state courts of appeals, hence the stumbling blocks the Court has, in recent years, placed in the path of federal review. Justice should be able to proceed as efficiently and swiftly as possible — much as now-President-elect George W. Bush puts it. During the presidential campaign, many, including President Clinton, insisted that the new president would have a chance to appoint at least one, if not several members of the Court (Chief Justice Rehnquist’s and Sandra Day O’Connor’s seats are the most likely to be vacated in years to come). If this may affect the fate of abortion in the US, it is less likely to affect the Court’s future death penalty rulings insofar as the majority already favors backing state decisions.

The evolution of criminality

However, it would be wrong to blame the sole Supreme Court for the unquestionable toughening up that has occurred in the past fifteen years: its rulings should be considered in the context of broader social phenomena, which have been addressed by the federal government as a whole, not only the highest court. Among these phenomena, the following can be pointed to:

- a rising crime and homicide rate in the 1960s, 1970s and 1980s, as proved by Table 4 below. The crime rate was played up by politicians, especially in the 1980s through 1992, to whom the media lent a hand, thereby reinforcing people’s concern and calls for harsh measures;

- failure to tie rising criminality to economic and social hardships, hence (1) the stress on the alleged deterrent value of the death penalty; (2) the fear that "mere" life sentences would enable dangerous criminals to walk the streets after a few years in prison; (3) the argument that execution was needed as a form of retribution; and (4) increasing concern that the condemned were unduly seeking to circumvent just verdicts by filing numerous appeals.

* Homicide rate: per 100,000 inhabitants.

Source: Bureau of Justice Statistics, http://www.ojp.usdoj.gov/bjs/homicide/totals.txt

The logical outcome was the 1994 Violent Crime Control and Law Enforcement Act, whereby Congress and President Clinton reinforced federal capital punishment by adding a number of crimes to those for which a defendant was eligible for a sentence of death; three of these — espionage, treason, and serious drug trafficking — did not involve murder.

A year later, the Oklahoma City bombing in which 168 people, including children, lost their lives, brought grist to the mill of those who called for a no-nonsense attitude, and advocated ridding society of its most dangerous members. A year later, Congress passed the Antiterrorism & Effective Death Penalty Act (AEDPA), which did not merely address the issue of terrorism but sought to make sure that the death sentences meted out by state juries and judges were executed with as little delay as possible. The 1997 trials of Timothy McVeigh and his accomplice, Terry Nichols, as well as tragedies such as the Columbine High School shooting and a series of incidents attesting to a disquieting rise in homicides perpetrated by minors, seemed to bear out decision-makers’ increasingly harsh stances concerning punishment. Hence, for instance, the decision made by a number of states, such as California, to try juveniles in adult courts and submit them to the same sentences as adults would be submitted. On 7 March 2000, California voters passed a tough juvenile crime initiative (Proposition 21), which requires adult trials for minors as young as 14 charged with murder or sex crimes (this means that they might be sentenced to death if convicted, in violation of Supreme Court rulings).

New trends and denunciations

As shown by Table 4, the long boom of the 1990s did translate into declining crime rates, and violent crime and homicide followed the same trend. However, public opinion does not change overnight, especially regarding such sensitive issues as the death penalty, which involve personal ethics, education, and many other phenomena. Given the impact of the events that have been mentioned above, Americans’ support for the death penalty did not drop until the last years of the decade. Significantly, it was in the past few years too that the press began to report and discuss some of the reports showing that the capital punishment in the US could be qualified as "flawed."

The following quotations will attest to a switch in perceptions regarding where death-penalty-related problems lie. In June 1996, when legal analyst Charles Doyle explained AEDPA on the Web, saw federal habeas corpus reviews as negative insofar as they brought about undue delays in executions, and ignored their positive impact in guarding against miscarriage of justice. He wrote:

Widespread errors

In June 2000, a comprehensive study of the death penalty in the US, directed by Columbia University School of Law Professor James S. Liebman, made newspaper headlines. The authors forcefully assert that "high error rates pervade American capital-sentencing jurisdictions" and "have persisted for years." Among the most glaring evidence of flaws, they note:

As a logical consequence, the Liebman survey is very critical of the Antiterrorism and Effective Death Penalty Act, which, by drastically reducing possibilities of appeal, also has reduced the chance that errors will be corrected, thereby making it likely for innocents to be executed: "The high rates of error found at each stage — including even at the last stage [of appeal] — and the persistence of high error rates over time and across the nation, confirm the need for multiple judicial inspections. Without compensating changes at the front-end of the process, the contrary policy of cutting back on judicial inspection makes no more sense than responding to the insolvency of the Social Security System by forbidding it to be audited."

Appalling figures bear Professor Liebman out. According to Stephen Bright, 87 people nationwide have been found innocent although originally sentenced to death [The Atlanta Journal Constitution, 11 June 2000]. In the last decade, more people have been released from death row on evidence of wrong conviction than have been executed [William Schneider, The Atlantic, 14 June 2000]; it was the revelation that, since 1977, thirteen innocent people had escaped state-sponsored death at the last minute that convinced Governor Ryan that a moratorium on executions was a necessary precautionary measure while the state’s capital-sentencing system was being analyzed and revamped.

Sentencing disparities

Numerous studies have shown that, as President Clinton has put it, "what [a defendant’s] prosecution may determine [seems to] turn solely on where [he/she] committed the crimes." The problem has been pinpointed concerning both federal and state death sentencing:

¬ A study by law Professor Rory of Hastings College of the Law (San Francisco) has revealed that one third of all federal death penalty cases in the US are submitted by attorneys in only five of the 94 federal districts (USA Today, 5 October 2000).

¬ Disparities between the states appear clearly in Table 2, which lists the number of death row inmates per state. They concern both trial sentencing and appeals. According to a report released by the American Civil Liberties Union and other Human Rights advocates, Virginia tops the list of states with "a hostile judicial environment for trying capital cases." In that state, for instance, "new evidence discovered after trial must be submitted within 21 days, and may not be considered afterward even if it proved a person’s innocence." (The Roanoke Times, 10 April 2000).

Social discrimination

In "Counsel for the poor: the death penalty not for the worst crime but for the worst lawyer," (The Yale Law Journal, 1994, http://justice.policy.net/proactive/newsroom/release.vtml?id=18681 ), Stephen B. Bright tells the story of an Alabama woman condemned to death for "arrang[ing] to have" her abusive husband killed. Asking why the death penalty was imposed, he adds "it may have been in part because one of her court-appointed lawyers was so drunk that the trial had to be delayed for a day after he was held in contempt and sent to jail. The next morning, he and his client were both produced from jail, the trial resumed, and the death penalty was imposed a few days later. It may also have been in part because this lawyer failed to find hospital records documenting injuries received by the woman and her daughter. . . And it may also have been because her lawyers did not bring their expert witness on domestic abuse to see the defendant until 8 pm on the night before he testified at trial." Many such stories are available on http://justice.policy.net/wrong.

Over 80 percent (95 percent in Virginia) of people accused of crimes are poor and cannot afford a lawyer. Since the US Supreme Court’s 1963 Gideon v. Wainwright ruling, poor defendants have been entitled to court-appointed lawyers. However, several reports, such as that of Southern Center for Human Rights about Georgia, have pointed to serious deficiencies in state indigent defense systems. While some appointees are downright incompetent, others are inexperienced in capital cases because most of their work is divorce-related, and still others, given the low fees they receive for the defense of indigents charged with capital crimes, have little incentive to devote much energy and skill to performing their tasks adequately. As a result, a 1993 report by the American Bar Association concluded that "long-term neglect and underfunding of indigent defense have created a crisis of extraordinary proportions in many states throughout the country." Incidentally, the influential American Bar Association began to call for a moratorium three years ago.

Not only are poor defendants in general the victims of low-standard defense, but in a number of states they are even worse off. Thus, "[i]n some municipal and state courts [of Georgia], there are no lawyers available to represent indigent defendants. Virtually all the poor people are processed through those courts without a lawyer." (http://justice.policy.net/studies/georgia/index.vtml ). In Texas, the problem is compounded by the way lawyers are appointed, under a much-decried patronage system. Governor George W. Bush vetoed a bill which would have created an independent public-defender system as exists in many states such as Illinois, Colorado, etc. For a "Public Defender’s Credo" which affirms basic democratic commitments, click on http://jud10.flcourts.org/pd.htm. In view of the many criticisms, including by some Supreme Court justices [see above, chronology, 1997], directed at the Texas judicial system, George W. Bush’s veto appears to be quite baffling. In October, a report by the Texas Defender Service, a group which provides free legal advice to prisoners who have been sentenced to death, depicted the application of capital punishment in Texas as "a thoroughly flawed system" on account of "racial bias, incompetent defense counsel and misconduct committed by police officers and prosecutors." The study is based on hundreds of death penalty cases and provides what the group presents as "an unprecedented volume of objective evidence" (The International Herald Tribune, 17 October 2000).

[For specific examples of people who were released from death row either after DNA testing cleared them, or after the actual perpetrator confessed to the crime, click on http://justice.policy.net/profiles/ ]

Race bias

The race factor works two ways: both race of the accused and race of the victim have been found to affect conviction and sentencing. When a defendant has the added drawbacks of not being White, of being poor, and accused of murdering a White person in an area prone to imposing death sentences, his fate is virtually sealed.

The racial discrimination issue is hardly recent. In his 1997 "Case against the death penalty," Tufts University Professor Hugo Adam Bedau cites Gunnar Myrdal who, in 1944, wrote that "[t]he South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." In 1987, Justice Brennan, in a forceful dissent in McCleskey v. Kemp, traced the history of racial discrimination in death penalty imposition. Ten years ago, it was the US General Accounting Office which reported to Congress that its synthesis of 28 studies "shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision," and that "race of victim influence was found at all stages of the criminal justice system process." (Death Penalty Sentencing, 1990). (See also executions by race.)

The correlation between the probability of sentencing discrimination and prosecutors’ race is convincingly shown by the Death Penalty Information Center, which uses a study by Professor Jeffrey Pokorak of St Mary’s University School of Law, released in 1998. It appears that 98 percent of all district attorneys responsible for death penalty sentences are White, while one percent are Black and one percent Hispanic. Apart from sentencing proper, race is also a factor in jury selection, despite the Supreme Court’s Batson v. Kentucky ruling which pronounced the practice to be unconstitutional. The Death Penalty Information Center says (and proves) that prosecutors circumvent the ruling "by providing race-neutral reasons as a pretext for eliminating unwanted Black jurors." (http://www.deathpenaltyinfo.org/racerpt.html ).

It would be wrong to conclude that federal procedures, as opposed to state ones, are color-blind. The proportion of African-Americans on federal death row is a sign that racial discrimination does exist in federal capital sentencing. Besides, data collected by the federal Death Penalty Resource Counsel Project show that White defendants in federal capital cases are more likely than their Black counterparts to receive plea agreements whereby they escape a death sentence. A survey of 146 cases prosecuted since 1988, the year when Congress reinstated the federal death penalty, shows 60 percent of White defendants have avoided capital punishment through plea bargaining, as against only 41 percent of Black defendants (The Chicago Tribune, 24 July 2000).

Finally, the first official review of the federal death penalty, ordered by President Clinton himself and carried out by the US Department of Justice, prompted the New York Times to entitle an article "US finds bias in its own death penalty cases" (The International Herald Tribune, 13 September 2000). The study, released in September 2000, revealed that in 75 percent of the cases prosecuted by federal attorneys in the last five years in which the death penalty was sought, the defendant has been a member of a minority group, and in over half of the cases, an African-American. This survey has been made available by the Justice Department on http://www.usdoj.gov/dag/pubdoc/dpsurvey.html.

Capital punishment for juveniles

It was in the 1980s that the US began to consider applying capital punishment to juveniles. In Thompson v. Oklahoma, the US Supreme Court declared that a death sentence inflicted on someone who was only 15 at the time of his offense violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." However, the ruling was based on a four-vote plurality only. Justice Sandra Day O’Connor supplied the fifth vote, but solely on the ground that Oklahoma had not adequately considered the issue of minimum age eligibility for the death penalty. So, the Court came perilously close to approving capital punishment for 15-year-old criminals.

Of the 38 states in which the death penalty is authorized, 16 have statutes stipulating that 18 (at the time the capital offense was committed) is the minimum age for eligibility for the ultimate punishment; in five states, the minimum age is 17; in 19, 16. The issue cannot be considered secondary: indeed, no less than three juvenile offenders have been executed this year, in Texas, Florida and Alabama. Thus in June, the Texas Board of Pardons and Paroles refused to delay the execution of Gary Graham, convicted on the testimony of a single witness of killing a man in 1981, when he was 17. Graham had always protested his innocence. The Supreme Court voted (5 to 4) to allow the execution, which took place on 22 June. From 1973 through 1998, 172 juveniles were sentenced to death nationwide (in 22 states); a total of 11 minors who were 17 at the time of their offense were executed, which points to a 89 percent reversal rate. Of the eleven, seven were put to death in Texas alone. Joseph John Cannon, executed on 22 April 1998, was 38 when he received a lethal injection: he had spent 21 years on death row.

(Victor L. Streib, http://www.law.duke.edu/jpournals/lcp/articles/lcp61dAutumn1998p555.htm );

[For information about the issue of juvenile death penalty, see http://www.law.onu.edu/faculty/streid/juvdeath.htm ]

Capital punishment for the mentally retarded

The issue of whether the death penalty can be imposed on mentally-retarded people is topical. Downright insane people may not be put to death, under Ford v. Wainwright (1986). But the case of mental retardation is less clear-cut. In October 2000, Governor James Gilmore of Virginia pardoned a convict, not because he was mentally-retarded, but because DNA tests had cleared him of the charge of rape and murder. Earl Washington Jr., 40, was the first Virginia death row inmate to be exonerated in this way. Currently, the case of another mentally-retarded death row inmate, a Texan, is in the hands of the Supreme Court: the day he was to have been executed (16 November), the Court ordered a stay of execution until it ruled, not as to whether death sentences imposed on such convicts are unconstitutional, but whether the jury in the case was duly advised to consider the issues of mental retardation and child abuse as mitigating circumstances.

In a Burger v. Kemp, 1987, dissent, Justice Powell reaffirmed a previous Court statement that "youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. [US] history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment expected of adults." The Court majority in the Burger case, however, rejecting the defense lawyers’ argument that the jury had been denied a chance to consider evidence of the defendant’s age and retardation, allowed a 17-year-old who had an IQ of 82 to be executed. In Trop v. Dulles, Chief Justice Earl Warren had affirmed that "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man." Both the Burger decision and those which have recently been made by a number of state courts seem to prove that, to use Warren’s phrase, "the evolving standards of decency that mark the progress of a maturing society" have not really "progressed" at all.
 

Stepped up executions in states like Texas might be interpreted as proof that prosecutions and sentencing have become more reliable, those executed having failed to have their conviction and sentence reversed on appeal. This interpretation is clearly rejected by the Liebman study in the following terms:

In "The ‘cruel and unusual punishment’ clause" (The Bill of Rights in Modern America, Bloomington, 1993), Joseph L. Hoffmann writes:

The Supreme Court is not likely to take the bold step of declaring capital punishment to be unconstitutional per se. Why would the Court today, when executions are still numerous and a majority of Americans still back the death penalty, act in a far more radical way than it did in the early 1970s, at a time when Americans had visibly grown weary of executions? The present trend on the Bench is not toward judicial activism, but rather toward allowing the states and the people to decide for themselves. The justices will take note of an evolution in perceptions and may, in some cases, be more favorable to reprieves than they are today. The new hearing granted to Virginia death row inmate Terry Williams in April 2000 on the ground that he had been denied the effective aid of an attorney, the first such ruling since 1984, might be seen as a first step in this direction. The recent elections have returned a Republican majority in the House, and a 50-50 tie in the Senate: this should not raise an obstacle to the passage of the Innocence Protection Bill, which is bi-partisan; it may even give George W. Bush a chance to manifest his "compassion" by signing it into law. But a congressional bill abolishing the death penalty at the federal level, even if it were passed, would be unlikely to be approved by the ex-Governor of Texas. What is more liable to happen, however, is a drive toward a moratorium on executions and perhaps abolition at the state level, beginning in the states which have few death row inmates and have virtually stopped putting convicts to death. The example of Michigan, which abolished the death penalty as early as 1846, might inspire other states (R. Bonner, "States with no death penalty share lower homicide rates," The New York Times, 22 September 2000). Governor Engler, a Republican, is proud of his state’s stance and ignores polls which show that 60 percent of Michigan residents favor the death penalty. He wisely points out that 100 percent of them would like not to pay taxes.

The Liebman study, available on http://justice.policy.net/jpreport/

Links to death penalty Web sites:

http://www.clarkprosecutor.org/html/links/dplinks.htm

http://www.soci.niu.edu/~critcrim/dp/dplinks.html

http://ethics.acusd.edu/death_penalty.html