Death Penalty Reevaluation (2001)

number of Democrats and Republicans, once bitterly divided, now share a skeptical view of the effectiveness of capital punishment.

What do former New York Governor Mario Cuomo, actors Ed Asner and Danny Glover, conservative columnist George Will, the Reverend Pat Robertson and former Marine war hero Oliver North have in common?

Not much at first glance when one recognizes the left/right, liberal/conservative abyss normally gaping between them. But in fact, given in part to A shift in awareness that is currently sweeping the country, the six now share a skeptical view of capital punishment.

Admittedly, the position is a new one for the last three and their public declarations have been a bit jarring to their usual allies. Nevertheless, a common bond is being formed. Or is it?

Cuomo, Asner and Glover have been staunch abolitionists for years, arguing that the death penalty perpetuates rather than deters violence. They, like most death-penalty opponents, have argues that it discriminates racially and economically, does irreversible harm to those wrongly convicted, places a terrible financial and moral burden on society and provides ambitious politicians with an opportunity to simply posture instead of finding real solutions to crime. These views, though casually brushed aside as liberal cant in recent decades, seem to be gaining some traction today due to developments that are as inescapable as they are inexcusable.

Innocent people, 87 at last count, have been discovered among the community of the damned. That these men and women have been exonerated and freed is a shocking, eye-opening dash of cold water to those who had complacently assumed that police, prosecutors and the courts were doing a fine job of protecting the good from the bad.

Some, in fact, have taken a degree of comfort in the self-serving rejoinder offered by apologists who claim that 87 innocents being freed means that “the system is working” and choose to not bother themselves to look any further. Others, made curious by these revelations, begin to ask more difficult questions, especially when they learn that the efforts that freed most of the individuals involved struggling mightily against the very system that is claimed to be working. Thus some people, upon realizing that the fighters were students, family or pro bono attorneys working for years at great personal cost against heavily applied pressure, become actively concerned. It can be disconcerting to realize that those who would just as soon have these cases end in the death chamber might otherwise have to take responsibility for a slipshod, error-prone system shot through with bias.

Clarence Brandley, who was convicted in 1981 for the rape and murder of a 16-year-old girl in Texas, spent nine years on death row and barely escaped two dates with the executioner before being freed. The Texas Ranger investigating the case, after narrowing the suspects down to three janitors, looked at him and said, “You're the nigger; you're elected.” Kirk Bloodsworth, who was condemned in 1985 for the rape and murder of nine-year-old Dawn Hamilton, spent nine years on Maryland's death row because he didn't have an alibi and looked like the composite picture drawn up by a police artist.

If both were later proved innocent and freed only through persistent efforts of volunteer attorneys and friends (and in Bloodsworth's case a DNA test which was unavailable when he was convicted) vying against a steady onslaught of challenges, assaults and obstacles from those who make up “the system,” how do we know that some of the 650 men and women who have been killed since the death penalty was reinstated in 1976 weren't innocent as well? We don't.

Of late, that question has given rise to some debate. Apologists for the system as it now exists are quick to make the claim that there is “no proof” that we have ever killed an innocent man or woman. That this position flies in the face of exhaustive work done by Michael Radelet, Hugo Bedau and Constance Putnam in their book, In Spite of Innocence, seems not to register. “No proof,” the system's apologists insist, and in fact it's a tough point to counter. Though Radelet, Bedau and Putnam present considerable evidence to support their claim that more than 400 people were erroneously convicted of capital or potentially capital crimes between 1900 and 1991 (23 of whom died at the hands of the state), evidence that will stand up in a court of law is hard to come by, mostly because it remains under the control of those who don't want to be proven wrong.

Death-penalty opponents feel it defies logic to believe that a system so error-prone, so riddled with racial prejudice, ambitious prosecutors and less-than-scrupulous police that it has exonerated one person for every seven it has executed, has not killed an innocent. Would one trust a doctor who misdiagnosed one out of seven patients? Would one buy a car that had a one-for-seven record of fatal explosions?

Beyond that, concerned opponents might pick out a more recent case to make their point. Leonel Herrera, about to be executed in 1993, argued that his brother, now deceased, had actually committed the murder for which he was sentenced to die. His claim was supported not only by the attorney for the brother, who held that he was freed from attorney-client privilege by the man's death, but also by Herrera's nephew, the decedent's son. Arguing at the U.S. Supreme Court, the State of Texas said this claim of innocence was spurious and it should be allowed to go ahead with the execution. Justice Anthony Kennedy, speaking to the question of actual innocence, asked, “Let's say you have a videotape which conclusively shows the suspect is innocent. Is it a federal constitutional violation to execute that person?” Texas' Assistant Attorney General Margaret Giffey replied, “No, it would not be violative of the Constitution.”

A majority of the Court agreed, Herrera's appeal was denied and he was executed. Justice Harry Blackmum, for years a supporter of capital punishment, dissented, saying the Court's action in this case was “perilously close to simple murder.”

Or, one might ask about Jesse Tafero, whose head burst into flames as he was being killed in Florida's electric chair in 1990. A few years later, Tafero's co-defendant, sentenced to death at the same time as he, was freed by the state when a new analysis of the evidence demonstrated conclusively that the crime could not have happened the way the prosecutors argued it had. The nick of time for the co-defendant, too late for Tafero.

Early this past summer, Shake Sankofa, née Gary Graham, was executed in Texas, his case the subject of an international outcry. The concern arose from new evidence, discovered by attorneys handling his appeal, which demonstrated stunning, inexcusable neglect on the part of the court-appointed attorney who had represented the then 17-year-old at trial. Governor George W. Bush maintained, as he has for the 137 others who have died on his watch, that he was satisfied Sankofa/Graham was guilty and had had “full access to the courts.” An examination of that claim, however, shows it to be either clever, mistaken or utterly perfidious. Not only was such “access” restricted by the appellate court's unwillingness to consider new evidence after a prescribed amount of time had passed since conviction, but this critical evidence, never presented at trail by the defense counsel, included the testimony of two additional eyewitnesses who had a closer view of the perpetrator and directly contradicted that the single prosecution witness whose testimony sealed Sankofa's fate.

Sordid stories of prosecutorial misconduct in pursuit of political advancement, police “testilying” in court, racial bias in sentencing, mistaken eyewitness testimony, staggering incompetence on the part of drunken, drug-addicted or simply underpaid and unprepared court-appointed defense counsel, deals made with “snitches” in grotesqueries, all of which had failed to register for decades, have suddenly combined to reach a critical mass that is awakening the sleeping giant of public concern. The result? Who knows?

But as the public's discomfort rises, polls showing a steady decline in support for capital punishment (now at a 20-year low) suggest it may no longer be the sacred cow upon which ambitious politicians can happily build careers; clearly, more than bowing to the altar of death may now be required by concerned voters.

Certainly, the stunning about-face of Governor George Ryan of Illinois – and more politically significant his constituents' positive reaction – suggests that principled behavior and the death penalty may no longer be mutually exclusive. Ryan's declaration by fiat -once his state had freed more death row inmates than it had killed – was that executions would come to an end in Illinois until an appointed commission could study the system and report back to him. Further, the Republican death-penalty supporter said, “But I may never be satisfied with what they come up with. I'm not sure that anybody can come back and say, for a fact, that the death-penalty provisions have been fixed.”

So, after 24 years of Supreme-Court-sanctioned state killing and the death of 625 men and women, America is taking a new look at a form of punishment long ago given up by every other developed western nation and a growing number outside that frontier, such as South Africa and, more recently, Russia.

Conservative theorist and pundit George Will was moved, after reading the new book, Actual Innocence by Barry Scheck, Peter Neufeld and Jim Dwyer, to write, “It [Actual Innocence] should change the argument about capital punishment and other aspects of the criminal justice system.” He went on, in his April 6, 2000, column in the Washington Post, to say, “Conservatives, especially, should draw this lesson from the book: Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order. You will not soon read a more frightening book. It is a catalog of appalling miscarriages of justice, some of them nearly lethal. Their cumulative weight compels the conclusion that many innocent people are in prison, and some innocent people have been executed.”

That same month, Rev. Pat Robertson, in response to a question at a public forum on religion and the death penalty at William and Mary College said, “I think a [death penalty] moratorium would indeed be very appropriate.” Robertson, whose unswerving devotion to state killing had only heretofore been interrupted by the fate of Karla Faye Tucker, the convicted Texas axe-murderess cum Born-Again Christian, recently amplified the statement in a Meet the Press interview by, if gently, expressing doubt that Governor Bush, his avowed presidential preference, is correct in his view that none of those dead at his hand were innocent.

In an interview a month later, former Marine war hero, National Security Council functionary and conservative political candidate Lt. Colonel Oliver North, Ret., said, “I think Capital punishment's day is done in this county. I don't think it's fairly applied.”

So yes, Robertson, Will and North have joined Cuomo, Asner and Glover and a growing list of judges, politicians, legal experts and citizens concerned about the question of whether the continued use of capital punishment actually serves the interests of justice, or merely that of politics.

How about you?