Two recent law journals feature collections of articles on capital punishment. The University of Missouri-Kansas City Law Review focuses on wrongful convictions. The Summer 2002 issue includes articles on DNA evidence, Innocence Projects around the country, and the role of journalism in helping to rectify wrongful convictions. (70 University of Missouri-Kansas City Law Review 797 (2002)). The second new resource is the Summer 2002 edition of the Northwestern University School of Law's Journal of Criminal Law and Criminology containing an historical look at capital punishment in Chicago. Through an examination of a new data set on homicides, this symposium looks at issues such as judicial elections and capital punishment, women and the death penalty, and life without parole.
A recent Atlantic Monthly article by Alan Berlow features a review of never-before-seen summaries and related documents used by then-Governor George Bush during his consideration of clemency appeals filed by death row inmates in Texas. The article notes that Bush's legal counsel, Alberto R. Gonzales, often provided the Governor with case summaries and documents reflecting a "clear prosecutorial bias" and that Gonzales's briefings failed to raise crucial issues in the cases at hand: ineffectiveness of counsel, conflicts of interest, mitigating evidence, and evidence of innocence. The article also notes that Gonzales now serves as President Bush's White House counsel, and many consider him a possible future Supreme Court nominee. Read the entire article.
Although New York Law School Professor Robert Blecker and Columbia Law School Professor James Liebman 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.
A recent Fox News poll found that 69% of Americans favor the death penalty for persons convicted of premeditated murder, a drop of 7 percentage points from the number of respondents supporting capital punishment in 1997. The poll revealed that 23% of respondents opposed capital punishment, and 8% were not sure. In previous years, support for the death penalty registered 76% in 1997, 74% in 1998, 68% in 2000, and 2001.
The British Court of Appeal has overturned George Kelly's 1950 murder conviction more than half a century after Kelly was executed for the murder of a Liverpool movie theater manager. In his ruling, Judge Bernard Rix called the conviction "a miscarriage of justice which must be deeply regretted" and noted that the case against Kelly was entirely circumstantial and lacked any forensic evidence. The case was reexamined after new evidence of Kelly's innocence emerged in 1991. The Criminal Cases Review Commission, an independent organization that considers possible miscarriages of justice, raised Kelly's appeal after investigators found a 1949 statement to Liverpool police identifying another man as admitting to the crime. The statement had not been presented during Kelly's original trial, at which he maintained his innocence. Britain abolished the death penalty in 1969, five years after their last hanging.
U.S. Magistrate Jerry Davis has found that the way inmates are treated on Mississippi's death row constitutes cruel and unusual punishment in violation of the Eighth Amendment. Noting that the death row at Patchman prison is so harsh and filthy that inmates are being driven insane, Davis stated, "No one in a civilized society should be forced to live under conditions that force exposure to another person's bodily wastes. No matter how heinous the crime committed, there is no excuse for such living conditions." The ruling came in a lawsuit filed on behalf of six inmates who alleged harsh conditions were contributing to a high rate of mental illness among prisoners. Davis ordered 10 facility reforms, including annual mental health check-ups, better lighting, improved toilets, and insect control. The Mississippi Corrections Commissioner said that he does not consider the state's death row to be any worse than others across the country.
On May 28th, Virginia is scheduled to electrocute Percy Levar Walton, a Virginia death row inmate who does not know what year it is or that he cannot eat at Burger King once he has been executed. In a pending clemency petition to Virginia Governor Mark Warner and in an appeal to the U.S. Supreme Court, Walton's attorneys presented expert medical evidence, including tests by prison doctors, showing that their client suffers from schizophrenia and psychosis. They note that prison guards call Walton "Horse," short for "Crazy Horse," and that the guards stay at arms lengths to avoid his stench (a classic symptom of schizophrenia). In addition to Walton's mental illness, he scored a 66 on a recent IQ test and may be mentally retarded. A person with an IQ of 70 or lower is generally considered mentally retarded.
In "Forced Medication of Legally Incompetent Prisoners: A Primer," Kathy Swedlow uses cases such as Singleton v. Norris to examine the legal background and heated debate surrounding the issue of involuntary treatment of death row prisoners to make them sane enough for execution. Swedlow notes that many of those who support capital punishment find the holding in Singleton (which allows forcible medication) unsettling. She concludes that "even assuming Singelton's guilt, the forcible medication and execution of an incompetent defendant . . . should no longer be permitted."
Dave Lindorff's article "Unjust Executions" goes beyond the issue of innocence and explores cases where guilty defendants may have been executed despite unconstitutional trials.
The Texas Senate passed legislation (S.B. 1045) to create a joint interim committee on post-conviction exonerations. The committee will study wrongful convictions in the state and identify appropriate improvements in the criminal justice system to prevent such errors in the future. The nine members of the committee will include a state's attoney, two members chosen from the Senate Criminal Justice Committee, two members of the House Criminal Jurisprudence Committee, a judge, and two law professors. (May 20, 2003). William Sessions, a former director of the FBI, recently endorsed the creation of the panel, which still must be approved by the Texas House.