|
CHANGING THE WAY WE THINK ABOUT CRIME & PUNISHMENT
Mike Farrell
Actor; President, Death Penalty Focus
To those that believe state killing is necessary, just, and/or appropriate, I would like to ask you to consider these points.
One: Understand that we kill the innocent.
In order to have a death system, and have it designed and operated by fallible human beings, you must accept that mistakes will be made. That is the position of the more dedicated supporters of capital punishment, such as Judge Alex Kozinski of the Ninth Circuit Court of Appeals, who says that if we continue along our current path, innocents will surely die. He adds: "We have constructed a machine that is extremely expensive, chokes our legal institutions, visits repeated trauma on victims' families and ultimately produces nothing like the benefits we would expect from an effective system of capital punishment. This is surely the worst of all worlds, a self-defeating tactic which will do nothing to ensure that the very worst members of our society are put to death." Kozinski calls for changes that will ensure that only the most heinous criminals, the worst of the very bad, will be put to death.
By the same logic, the late justice Harry Blackmun of the U.S. Supreme Court came to an entirely different conclusion: The death penalty remains fraught with arbitrariness, discrimination, caprice and mistake, and he went on to say, "From this day forward, I shall no longer tinker with the machinery of death. For more than 20 years I have endeavored, indeed I have struggled, along with the majority of the Court, to develop procedural and substantive rules that would lend more than the appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved, I feel morally and intellectually obligated to concede that the death penalty experiment has failed."
The highly regarded study by Michael Radelet, Hugo Bedau and Constance Putnam in their book In Spite of Innocence: Erroneous Convictions in Capital Cases, says that in the period up to 1992, 435 innocent people were convicted of capital crimes in this country. Some were eventually exonerated and freed, some died in prison, some had sentences lowered; 26 were executed. Since the study was completed, more innocent have died. Leonel Herrera was executed in Texas on May 12, 1993, after the Supreme Court refused to hear new evidence of actual innocence. In that case, Justice Antonin Scalia said: "Mere factual innocence is no reason not to carry out a death sentence properly reached." Justice Blackmun, in dissent, called the court's decision "perilously close to simple murder."
In November 1998 Death Penalty Focus co-sponsored a conference at Northwestern University Law School which presented 30 of the then 78 men and women who had been tried, convicted and sentenced to death since reinstatement of capital punishment in 1976 - many of whom had spent years on death row, some of whom had come within hours of death, only to be finally completely exonerated and freed. Today, the number of those freed from death rows in the United States is 95. How do we give these people back their lives?
A recent New York Times article quotes Kirk Bloodswirth - a former Marine who spent nine years in death row in Maryland for the rape and murder of a young girl before being cleared by a DNA test - saying of attempts to put it behind him and start a new life: "It never, ever ends."
Two: Please understand that racism taints our criminal justice system and has corrupted the machinery of death.
This is borne out by every study done privately, and carefully delineated in a Congressional study. The Racial Justice Act, intended to remedy the problem, was opposed and defeated in Congress, largely because an unintended side effect would be to effectively end the death system in this country. Former Supreme Court Justice Lewis Powell cast the deciding vote and wrote for the majority in the famous McCleskey case (McCleskey v. Kemp; 1987), which held that although the racial studies presented as evidence demonstrated a significant bias against black people in our criminal justice system, McCleskey himself must still die because he hadn't proven it true in his particular case. Powell admitted the findings, if upheld by the Court, would undermine the entire criminal justice system. After his retirement, Powell said that upon reflection, out of his entire career, the one vote that he wished he could change was McCleskey.
A recent Justice Department study showed racial, ethnic and geographic bias in the charging of death penalty cases in the federal system. Of the 675 cases where U.S. attorneys recommended death sentences, only slightly more than one-quarter were white defendants. Blacks comprised almost half of defendants, Hispanics one-fifth. Roughly 81 percent of the men currently on federal death row are minorities.
Three: Please understand that only the poor are executed.
Or as the prison slogan has it: "Them that has the capital don't get the punishment." Prosecutors rarely go for a death sentence against a wealthy defendant. The 3,700 men and women on America's death row are virtually all poor, a significant number of whom, had they been able to afford a decent defense attorney, would not be where they are today. Between 40 and 50 percent of capital convictions have been reversed in the years since the death penalty was reinstated. A large percentage of these reversals have been granted at least partly on the grounds of ineffective assistance of counsel. Those who end up on death row today are not those most guilty but those who have the worst lawyers. Supreme Court Justice Ruth Bader Ginsburg, speaking this past April at the University of the District of Columbia, said, "I have yet to see a death case among the dozens coming to the Supreme Court on the eve of execution stay applications in which the defendant was well-represented at trial."
Calvin Burdine in Texas was represented by an attorney who slept during significant portions of his trial. After pointing out to the judge that his lawyer was asleep a number of times, only to go back to sleep, the defendant said to the judge: "Your Honor, this isn't fair. My life is at risk in this trial." The judge responded, "The Constitution says you have to have an attorney. It doesn't say he has to be awake."
Four: Please understand that the death penalty costs almost twice as much as life without parole.
A sentence of life in prison without the possibility of parole does exist in our system and is available in many states. In California, according to the governor's office, over 2,000 people have been given life without parole (LWOP). The only one ever released was DeWayne McKinney, freed two years ago after 19 years in prison because it was determined that he was innocent. Texas, the nation's leading killer of convicted felons, has not had an LWOP alternative on the books, but as a result of the storm of attention that has come their way such a bill is now being considered.
Because the Court has said that death is different, extra care must be taken to avoid error, including a bifurcated trial, which means one to determine guilt or innocence, and the second, if there's a conviction, to determine the sentence. Extra security measures are required; provisions must be made in many states for investigation, background checks, psychological studies, research of mitigating circumstances. There are a series of court-mandated appeals to ensure that the process was fair and the defendant's constitutional rights have been honored. These appeals go through state courts and then the federal system. It takes years, not because of tricks or delaying tactics on the part of the defense, but because the Supreme Court said that the taking of a life requires such care. In the process of that, 40 to 50 percent of the cases fall out, resulting in a new trial or a lesser sentence. Even with these precautions, people spend 10 to 20 years on death row before being exonerated.
A death penalty trial, appeals and eventual execution costs two to three times as does a simple trial, life without parole, and the maintenance in prison of the convicted person for an average of 40 years. Former Attorney General of Texas, Jim Mattox, says it's three times as costly for a death penalty trial. The Sacramento Bee did a study ten years ago in which they found that California alone would save about $90 million per year through eliminating the death system. A more recent study in New York says they would save $120 million a year.
Five: Please understand that we are killing the mentally damaged and the mentally retarded in our chambers of death.
Only some states have legal bars against executing the mentally retarded. In many instances, it becomes the question of sanity - different experts offering different conclusions - and because of hair-splitting decisions and the need to feed the machine, prosecutors find themselves in the position of accusing six deranged, disturbed and retarded people of faking their conditions.
In Marin County, California argued that convicted murderer Horace Kelly, who has been living in his own excrement for ten years, surrounded by moldy food and soiled bedding in a state of bizarre delusions and hallucinations, incoherence, catatonic behavior - this, according to a prison psychiatrist - is sane enough for us to kill him.
In Arkansas in 1992, Rickey Rae Rector, who had effectively been lobotomized by a self-inflicted gunshot wound at the time of his crime and had virtually no comprehension of the situation in which he found himself, was led to his execution. As was his habit, he left the dessert from his last meal waiting in his cell for when he returned. The prison chaplain subsequently went into psychiatric care and today refers to Rickey's execution as a crime in itself, saying, "We're not supposed to kill children."
Six: Please understand that we kill those who were children when they committed their crimes, despite international agreements banning our doing so.
In this practice, we stand in the company of Nigeria, Afghanistan, Iran and Saudi Arabia. One study showed that the majority of young people examined on death row - those who were legally children when they committed the crimes for which they stood convicted - presented visible brain damage as the result of a head trauma.
Sean Sellers was executed two years ago in Oklahoma for killing his parents when he was 16 years old. He had been diagnosed as having multiple personality syndrome as a result of extreme physical and sexual abuse as a child. The diagnosis was recognized by an appeals court which felt itself barred from intervening in the execution because the issue had not been properly raised at trial.
Fyodor Dostoevsky once posited that if you want to look at the soul of a nation, look into its prisons. Less well known is that then-Home Secretary Winston Churchill said to Parliament in 1910, "The mood and temper of the public is, in regard to the treatment of crime and criminals, one of the most unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal measures the stored up strength of a nation and is sign and proof of the living virtue in it."
Virtually all major faith groups oppose the use of capital punishment. Because it is applied in a manner that is racially disproportionate; because it kills the innocent, the mentally ill, the retarded, the economically disadvantaged; because it has skewed the political system by attacks on judges unfairly characterized as soft on crime; because it has been used to create a political climate that puts undue pressure on police and prosecutors to perform, thus increasing the likelihood of prosecutorial and police misconduct; because it is used by slogan-wielding demagogues who have found a tough-on-crime rhetoric can create a political career; because it is unnecessary, immoral and ineffective and destructive of the moral fabric of our nation, I believe that we must put an end to this loathsome practice.
After a 1996 study, the International Commission of Jurists called for the U.S. to end the practice. In 1997 the American Bar Association called for a moratorium for the same concerns. In 1998 the United Nations Special Rapporteur on Summary, Arbitrary and Extrajudicial Executions released his report, coming to the same conclusion. The UN High Commission on Human Rights has called for a halt. Even Russia has ended state killing, recently followed by Tadjikistan and Turkey. Look at the facts, look into your hearts, and join me in insisting that we must do better.
