The Death Penalty in 1999: Year End Report

The number of executions in the U.S. in 1999 was the highest for any year since the death penalty was reinstated in 1976. There were 98 executions, one-third of them in Texas. This 44% increase in executions from last year is partly the result of a large number of older cases facing an expedited federal and state appeals process.

At the same time, the number of innocent people freed from death row also grew in 1999, with 8 more people released. The number of inmates exonerated since 1973 has now reached a total of 84. Most notable among such cases this year was that of Anthony Porter in Illinois, who came within hours of execution and was fortuitously freed through the work of a Northwestern University journalism class. Another man has confessed and been convicted of the crime for which Porter was to die.

Such mistakes in the application of the death penalty have resulted in proposals from state legislators, judges, and religious and international leaders to impose a moratorium on the death penalty. Legislation to reform or stop the death penalty progressed further than at any time in recent years. A Gallup Poll in February recorded the lowest support for the death penalty in 13 years.

The racial breakdown of the 98 cases resulting in execution this year is as follows:

The race of victim breakdown continues a trend since the death penalty was reinstated of predominance by white victim cases. Despite the fact that nationally whites and blacks are victims of murder in approximately equal numbers, 83% of the victims in cases resulting in executions have been white. Since this disparity is confirmed even in studies which control for similar crimes by defendants with similar backgrounds, it implies that white victims are considered more important in the criminal justice system.

Almost all the executions this year were by lethal injection. Following a series of botched executions in Florida, culminating in the bloody electrocution of Allen Davis in July, the U.S. Supreme Court agreed to review the constitutionality of Florida’s electric chair. The case, Bryan v. Moore, is scheduled to be argued on February 28, although Florida may render the case moot by amending its method of execution in the meantime. Only four states maintain the electric chair as their sole means of execution: Alabama, Florida, Georgia, and Nebraska. The other 34 states with the death penalty have lethal injection either as their sole method or as an option for the defendant.

Methods Used in 1999
Lethal injection - 94
Electrocution - 3
Lethal gas - 1

Perhaps reflecting a growing concern about the fairness and accuracy of the death penalty in the U.S., five governors granted clemency in five capital cases this year. The average number of clemencies during the past 5 years was one per year:

One juvenile offender, Sean Sellers, who was 16 at the time of his crime, was executed in Oklahoma this year. However, three such executions are scheduled for the first month of 2000 in Virginia and Texas. Twelve of the people executed this year waived their appeals. Five of those executed this year were citizens of other countries: two from Germany, one from Canada, one from Thailand, and one from the Philippines. Most of these defendants challenged the fact that they had not been informed of their rights under the Vienna Convention on Consular Relations. Secretary of State Madeleine Albright apologized for the U.S.’s failure to abide by this treaty, and the International Court of Justice attempted to intervene, but no executions were halted.

January Pope John Paul II visited St. Louis, Missouri and called for an end to the death penalty in front of hundreds of thousands of followers. Gov. Mel Carnahan granted clemency to Darrell Mease, who had been scheduled for execution during the Pope’s visit.

February Oklahoma executed Sean Sellers, who was 16 at the time he murdered his parents. This marked the first time in 40 years that such a young offender was executed in the U.S. Criticism and calls for clemency came from around the world, including Archbishop Desmond Tutu, the American Bar Association, and Amnesty International.

March Germany protested the execution in Arizona of two of its citizens, Karl and Walter LaGrand. Germany filed suit in the International Court of Justice (ICJ) in The Hague, noting that the brothers had not been informed of their rights under the Vienna Convention on Consular Relations. That Court unanimously ruled that Walter LaGrand’s execution should be stayed, but the U.S. Supreme Court refused to intervene. Germany’s suit against the U.S. continues, as the ICJ addresses the treaty violation and the appropriate remedy.

April The United Nations Commission on Human Rights passed a resolution calling for a moratorium on all executions, and a complete ban on the death penalty for juvenile offenders and those with severe mental illness. The U.S. opposed the resolution, along with such countries as China, Rwanda and Sudan. This year’s resolution was similar to one passed last year, but it was sponsored by the European Union, which has assumed a more active role in opposing the death penalty.

May Nebraska’s legislature became the first to vote for a moratorium on executions which Gov. Johanns then vetoed. However, the legislature also unanimously passed, over the governor’s veto, a bill funding an extensive study of the fairness of the death penalty in Nebraska. It is unlikely that any executions will occur while this study is in progress. In California, a highly decorated Vietnam Veteran, Manuel Babbitt, who was suffering from post-traumatic stress syndrome at the time of his offense, was executed despite pleas for clemency from his fellow Marines.

June Russia’s President Boris Yeltsin commuted the death sentences of 716 inmates on Russia’s death row, thereby moving that country closer to abolishing the death penalty. Russia has applied for admission to the Council of Europe, which requires its members to abolish the death penalty. Many other countries of the former Soviet bloc have also abandoned capital punishment.

July Blood poured from the face of Allen Lee Davis as he was being executed in Florida’s electric chair. Pictures of Davis immediately after his execution showed a shirt covered with blood, a large tight collar around his neck, and a traumatized face. The Florida Supreme Court eventually upheld the chair’s constitutionality on a vote of 4-3. In October, the U.S. Supreme Court agreed to review a challenge to Florida’s method of execution, which will be heard in February, unless Florida changes its method in the meantime.

August Articles such as the New York Times’s The Alumni of Death Row, featuring pictures and accounts of the inmates freed from death row in the 1990s, and the Chicago Tribune’s earlier series on the death sentences overturned in Illinois, prompted broad public concern about the reliability of the system of capital punishment. In Illinois, the majority of citizens supported a moratorium on the death penalty. An Ohio State University poll found that the two-thirds of the state’s citizens believed that a mistaken execution was likely. A Missouri poll found that 56% of respondents supported a moratorium to study the fairness of the death penalty.

September The 100th execution in Texas under the administration of Gov. George W. Bush took place. Texas leads the country with the most executions this year (35) and accounts for one-third of all executions in the country since the death penalty was reinstated (199 out of 598). No other state or governor in recent times comes close to this number of executions. Virginia has had the second largest number of executions since reinstatement, 73, including 14 this year. As a percentage of its population and as a percentage of its death row, Virginia executes inmates at a higher rate than Texas.

October An international conference on a moratorium of the death penalty was held at Columbia University. The Death Penalty Information Center released its report, International Perspectives on the Death Penalty: A Costly Isolation for the U.S., cataloging the ways in which the U.S. has separated itself from its allies with its insistence on expanding the death penalty, and on executing juveniles, the mentally retarded, and those denied their rights under international treaties.

November Alfred Rivera was acquitted after a re-trial in North Carolina and freed from death row, becoming the 84th person since 1973 exonerated after being sentenced to death. In New Mexico, a group of religious leaders filed suit protesting discrimination against people who are rejected from serving on capital juries if their faith prevents them from supporting the death penalty.

December Wendell Flowers’s death sentence was commuted in North Carolina, marking the 5th clemency in the U.S. this year. One of the last executions of the year was that of David Long in Texas. Long had to be flown from a hospital in Galveston accompanied by medical personnel. He had been rushed to the hospital and placed on life support following a suicide attempt.

Despite the record number of executions this year, many prominent leaders from across the political spectrum raised objections to the death penalty. Among those voices were:

• Pope John Paul II, speaking in Missouri, called for an end to the death penalty: “I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary. A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil.Ó (Reuters, Jan. 27, 1999).
• Justice Paul Pfeifer of the Ohio Supreme Court, who formerly was one of the authors of the state’s death penalty law, questioned capital punishment as Ohio carried out its first execution since the reinstatement of the death penalty: (Wilford Berry, who refused all efforts to appeal his case, was executed on February 19, despite significant questions about his mental competence.) “As we stand poised on history’s doorstep, I find myself wondering if it’s a step that we really want to take. Should the state be in the business of ending people’s lives, no matter how reprehensible those people are?” He added that he wanted to distance himself from Ohio’s law: “Knowing what I know now, my name wouldn’t have been on it.” (Akron Beacon Journal, Feb. 18, 1999)
• Julie Dorf, Executive Director of the International Gay & Lesbian Human Rights Commission, spoke as one representative of eleven major organizations representing gay and lesbian people which opposed the death penalty in the wake of the beating and murder of a gay student, Matthew Shepard, in Wyoming: “Human rights are not a euphemism for gay rights. We cannot pick and choose human rights. The death penalty is wrong in all cases.” (Press release, Feb. 10, 1999)
• Ronald Dworkin, professor of jurisprudence at Oxford University and professor of law and philosophy at New York University, wrote: “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, July 11, 1999).
• Justice Harry Lee Anstead dissented from the Florida Supreme Court’s upholding of the constitutionality of the state’s electric chair by a 4-3 vote, despite a series of several botched executions: “Our justice system is not simply an instrument of vengeance, despite the connotation to that effect contained in the extreme rhetoric that sometimes surrounds the constitutional debate over continuing use of the electric chair.” (St. Petersburg Times, Sept. 26, 1999)
• Mary Robinson, United Nations High Commissioner for Human Rights, wrote: “More than half of the nations of the world have abolished the death penalty in law or in practice, and I welcome the fact that more and more countries are joining this trend, by either restricting the number of offenses punishable by death or abolishing the death penalty altogether. At the same time, I deeply regret that in the last years a number of states have increased the use of the death penalty or resumed executions after a period of de facto moratorium. While working towards the ultimate goal Ñ a universal ban on capital punishment we must also ensure that the existing limitations and restrictions on the use of the death penalty are fully respected by those who still retain this practice.” (Message to Press Conference, Death Penalty Information Center, New York, Oct. 12, 1999)
• National Catholic and Jewish leaders issued a joint statement calling for an end to the death penalty. The National Council of Synagogues and the ecumenical committee of the National Conference of Catholic Bishops committed themselves to working together and within their own communities to abolish the death penalty: “We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.” (A Report of the National Jewish/Catholic Consultation, Dec. 6, 1999).
• Newspapers around the country editorialized eloquently for a reconsideration of the death penalty, especially in response to the numerous innocent people discovered on death row. One example was a recent editorial in the Pittsburgh Post Gazette: “This is a statistic too frightening to contemplate: Since the modern death penalty was reinstated in the United States in the 1970s, 79 people [now 84] have been released from death row - because they were found to be innocent. In one recent case, a man facing death was absolved at the 11th hour not by the judicial process, but by a class of journalism students. So the horrifying question goes unasked: Of the close to 600 people who have been killed since 1976 by states across America, how many of them were innocent? Ask yourself: How many would be too many? One? Five? Ten? Twenty?” (Nov. 23, 1999).
• U.S. Senator Russell Feingold (D-WI) introduced the Federal Death Penalty Abolition Act of 1999 on November 11. The bill would end executions and forbid death sentences for violations of federal law. In introducing the bill, Feingold said: “I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great nation. Today, I introduce a bill that abolishes the death penalty at the federal level. I call on all states that have the death penalty to also cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system. I close with this reminder to my colleagues. Where would our nation be if members of Congress were followers, not leaders, of public opinion? We, of course, would still be living with slavery, segregation and without a woman’s right to vote. Like abolishing slavery and segregation and establishing a woman’s right to vote, abolishing the death penalty will not be an easy task. It will take patience, persistence and courage. As we head into the next millennium, let us leave this archaic practice behind.”
• Former Florida Chief Justice Gerald Kogan, a former prosecutor, recently spoke about innocence and the death penalty: “[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed… . [Y]ou have to ask yourself, how many persons did we execute prior to the arrival of DNA evidence who would have been released, had we had that tool working for us 25, 30, 40, 50 years ago?” (Speech in Orlando, Fl., Oct. 23, 1999)

For the first time in many years, legislators have begun to take seriously the need to either reform or halt the death penalty. Religious and human rights leaders intensified their call for abandonment of capital punishment. Former prosecutors, judges and those most familiar with the death penalty in practice have begun speaking from their experience about the failure of the death penalty experiment. The cases of innocent defendants, often spared with only hours to execution, spoke most forcefully of the need for a radical reconsideration of this punishment. As concern about abuses rose, popular support for the death penalty dropped.

Although the momentum of the death penalty is carrying it to a record number of executions, the problems of race, mistakes, inadequate representation and other injustices continue to plague its administration. The first year of the new millennium may find the death penalty being challenged even more forcefully, although executions will certainly continue. Some issues may come to a head, with executions of juvenile offenders and the mentally retarded scheduled early in the year. The U.S. Supreme Court is poised to consider the historic question of whether the death penalty, at least in some instances, constitutes cruel and unusual punishment. Thus, it appears that the future of the death penalty may depend on whether it can ever be applied in a fair and accurate manner.