Killing for Votes: The Dangers of Politicizing the Death Penalty Process

The infusion of the death penalty into political races is reaching new extremes and distorting the criminal justice system. Although the use of death sentences to gain political leverage is certainly not new, the demagoguery aimed at escalating executions has become more pervasive. Not only are candidates for legislative office campaigning loudly on the death penalty, even judges and local prosecutors are citing the numbers of people they have sent to death row in their campaigns for office. This political promotion of capital punishment by those responsible for interpreting and implementing the law interferes with the right to a fair hearing and increases the likelihood that innocent defendants will be executed.

Many of those seizing the anti-crime mantle not only advocate capital punishment, but also seek to out-do each other in expanding the death penalty to new crimes, cutting appeals, and withdrawing the resources critical to defending those on death row. Judges, who frequently make the ultimate decision on whether a defendant lives or dies, are often subject to elections, appointments or confirmation proceedings in which any judicial ruling short of execution is attacked as softness on crime. Prosecutors, who have almost unlimited discretion on pursuing the death penalty, are repeatedly presented with an opportunity to broadcast their “toughness” by seeking a death sentence.

If a judge’s ruling for the defendant … may determine his fate at the next election, even though his ruling was affirmed and is unquestionably right, constitutional protections would be subject to serious erosion. -Justice Byron White[2]

This politicization results in a significant loss for the American people. Many candidates who know that capital punishment is not working are afraid to speak out. Respected jurists are routed from office after correctly holding certain capital procedures unconstitutional. Death penalty trials become campaign showcases for judges and prosecutors. And individual death row inmates, some of whom are provably innocent, and others who would never have been given a death sentence if afforded a fair trial, are denied hearings or lawyers because evenhanded appeals make for poor sound bites.

Thirty-eight states allow the death penalty. In 32 of those states the judges are subject to elections.[3] With disturbing frequency, judges who follow the law and overturn a death sentence are challenged for being soft on crime. The public is encouraged to view any ruling which interferes with a death sentence as an intrusive “technicality.” For a judge to follow the law and the constitution can have perilous consequences.

One Vote and Out

Justice Penny White was the only woman on Tennessee’s Supreme Court, having been appointed to that position by Democratic Governor Ned McWherter in 1994. She had served admirably for two years on the lower appellate court and, in fact, confirmed the overwhelming number of criminal convictions which she reviewed.[4] In the first death penalty case before her on the Supreme Court, she joined the unanimous vote of the other justices in affirming the conviction of Richard Odom, but overturning his death sentence. She also joined, but did not write, a three-judge majority opinion in the same case which found insufficient evidence to uphold Odom’s death sentence for the rape and murder under Tennessee’s capital punishment law. [5]

This gave the Tennessee Conservative Union, a far-right anti-tax group, the opening they needed to attack her as an opponent of the death penalty in the judicial election in August, 1996. White’s opponents, including the state’s Republican leaders, accused her of never voting “to uphold a death penalty conviction,”[6] (even though this was her first capital case and she had upheld the conviction), and of wanting to “free more and more criminals and laugh at their victims.”[7] Both of the state’s Republican senators voted absentee before the official election and then publicly announced that they had voted against Justice White because of her death penalty position in this one case.[8] The Republican Governor, Don Sundquist, proclaimed before the election that he would never name someone to a criminal court judgeship unless he was sure the nominee supported the death penalty.[9]

Throughout this campaign, Justice White was prohibited by the rules of judicial conduct from discussing the Odom case and defending her legal position. In the end, she lost the election and no longer serves on the court. Clearly, if she had gone against her sworn duty to follow the law and voted instead to execute Richard Odom, she would still be on the court today.

In Mississippi, Supreme Court Justice James Robertson was removed from office following a recall election in 1992 in which his opponent attacked Robertson’s decisions in death penalty cases. Robertson was even criticized for holding that executions were not permitted for the crime of rape, a position directly mandated by longstanding U.S. Supreme Court rulings. Nevertheless, Robertson was opposed by the Mississippi Prosecutors Association and was voted off the court.[10] One example of the patently false advertising directed against Justice Robertson read: “vote against Robertson because he’s opposed to the death penalty and he wants to let all these people go.”[11] Vote against Judge Robertson because he’s opposed to the death penalty and he wants to let all these people go. -false campaign ad

In Texas, Judge Charles Campbell was voted off the Texas Court of Criminal Appeals in 1994 following the reversal of a highly publicized capital murder case. Judge Campbell had served on the bench for 12 years and previously had been a conservative prosecutor. He was succeeded by Stephen Mansfield, who misrepresented his own qualifications, had been fined for practicing law without a license, and had virtually no criminal law experience. But he promised to uphold more death sentences. Judge Mansfield is now among the judges responsible for reviewing every death penalty case that comes before the court.[12]

Also in Texas, which executes more people than any other state in the country, Judge Norman Lanford was voted off the state district court in 1992 after he recommended that a death sentence be set aside because of prosecutorial misconduct. He was defeated in the election by Caprice Cosper, a death penalty prosecutor from the District Attorney’s Office.[13] While working as a prosecutor, Cosper kept a hangman’s noose over her office door.[14] Her campaign for judge highlighted her support for the death penalty.

In the state of Washington, the senior Justice on the Supreme Court chose to resign in 1995 because he could “no longer participate in a legal system that intentionally takes human life in capital punishment cases.”[15] In resigning, Justice Robert Utter specifically warned of the dangers of electing judges, because the process has become so politicized. Because of that politicization, the state of Washington lost a respected justice who had served for 23 years on its Supreme Court.

The climate has become increasingly hostile towards any judge who has reservations about the death penalty. The former Chief Justice of North Carolina’s Supreme Court, James Exum, had to mount a major campaign to counter an effort to discredit him which focused on his views on the death penalty. Chief Justice Exum had made it clear in his decisions affirming death sentences that he would not let his personal views on the death penalty interfere with his constitutional obligation to uphold the law.

Chief Justice Exum survived his election but expressed dismay that “the public clamor for the death penalty is becoming more shrill”[16] and that it is becoming more and more difficult for an elected state judge to survive even if he only occasionally overturned a death sentence. He announced that he would not seek re-election in 1998 and said he was “glad [he] will not have to run again.”[17] He eventually resigned before the end of his term.

Appointed Judges Also Under Pressure

Despite the fact that Justice Rosemary Barkett had upheld the death sentence in more than 200 cases, Senator Orrin Hatch wanted to see if she was “serious enough about the death penalty.”

Even where judges are appointed and not subject to elections, the politics of the death penalty works to exclude judicial candidates who have not pledged blind allegiance to the death penalty. Early in President Clinton’s term the Senate Republicans gave notice that they would challenge any of his judicial nominees whom they considered to be insufficiently committed to the death penalty.[18] Considerable opposition, for example, was mounted against the Chief Justice of the Florida Supreme Court when she was nominated for the U.S. Court of Appeals. Despite the fact that Justice Rosemary Barkett had upheld the death sentence in more than 200 cases, Senator Orrin Hatch wanted to see if she was “serious enough about the death penalty.”[19]

Barkett was ultimately confirmed but the politics of the death penalty continued as those who voted for her were accused of being soft on crime. Senators Diane Feinstein, a vocal death penalty supporter, Edward Kennedy, Jim Sasser and Charles Robb were attacked in their re-election bids because of their vote for Judge Barkett. Sasser lost his seat to Bill Frist, who later was instrumental in the campaign to unseat Justice Penny White from Tennessee’s Supreme Court.

Candidate Michael Huffington blasted Senator Feinstein with a misleading commercial that said “Feinstein judges let killers live after victims died.”[20] His full page ad described the grisly details of the murders in three cases in which Justice Barkett had voted to reverse the death penalty but neglected to give the legal grounds that required the reversals.

An ominous sign that such political attacks on judges could escalate during this election year emerged during the dispute over a ruling by Judge Harold Baer, Jr. of the federal District Court in Manhattan. Although not a death penalty case, the furor over Judge Baer’s decision to exclude some evidence against a drug defendant drew calls for impeachment from Senator Robert Dole and hints of a demand for resignation from President Clinton. Judge Baer eventually changed his ruling on the evidence[21] and then withdrew from the case all together.

Senator Dole has also attacked President Clinton’s two Supreme Court appointees, Justices Ruth Bader Ginsburg and Stephen Breyer, as willing to use “technicalities” to overturn death sentences.[22] Despite Dole’s effort to position these Justices as being on the extreme of death penalty jurisprudence, however, most of the Court’s recent death penalty cases have been decided unanimously. In criminal cases, Justice Ginsburg sided 80% of the time with Justices Rehnquist, Thomas and Souter.[23]

Judges Protecting Their Position

Because judges are subject to political attacks, some judges go out of their way to show they are “not weak on crime.” The elected judges on Alabama’s Supreme Court took no chances that the public might misconstrue their views. They recently implemented measures on their own to speed up the executions of those on death row. They threatened to set execution dates even for those who have not completed their appeals.[24] The reason, however, why many of these inmates have not filed further appeals is that they have no attorney, according to Bryan Stevenson [25], former Director of the Alabama Resource Center, which represented death row inmates before all of its federal funding was eliminated.

In Virginia, the state with the third highest number of executions, execution dates are being set by the courts in rapid succession. Post-conviction petitions now must be filed directly with the Virginia Supreme Court, which has dismissed 100% of the habeas corpus petitions it has received in capital cases since the death penalty was reinstated. Formerly, petitions were filed with the trial court, where evidentiary hearings could be held. Now, decisions dismissing the appeals are issued a few weeks after the briefs are submitted, with no hearings, no oral argument, and no allowance for expert assistance. Some of the extensive briefs submitted involve complex legal questions, but the same rejection is rapidly issued by the court in each case. The Virginia Resource Center, now without federal funding, is faced with an avalanche of cases pending execution. With a depleted staff, it must rush to file petitions in federal court or the executions will take place in short order.[26]

It is irresponsible for the state courts to fail to conduct a searching review of death penalty cases. The large number of innocent people who have been discovered on death row over the past twenty years and the high percentage of cases with constitutional errors found by the federal courts, are a strong indication that serious mistakes are being made at capital trials. Legislation passed this year diminishes the role of the federal courts in reviewing death penalty cases. This makes it even more important that state courts be more than a rubber stamp of what happened at trial. Otherwise, these errors will never be corrected.

In California, a complete shift in the death penalty decisions being handed down by the state Supreme Court was achieved without any change in the capital punishment law. Instead of modifying the law, a political campaign was mounted to oust the Court’s Chief Justice Rose Bird and two associate justices. They were voted out of office after the court had overturned a series of death sentences because of legal defects. With a new Chief Justice, California quickly achieved the highest affirmance rate for death penalty cases in the country, affirming an astounding 97% of the death penalty cases that come before the court on appeal.[27] By comparison, about 35% of death cases nationally are overturned on appeal, 10 times the rate of the California Supreme Court.[28]

Yet, when it comes to finding attorneys for those on California’s death row, this same court has one of the worst records in the country. Over a quarter of the state’s death row, 128 inmates, have not been assigned an attorney for even their first appeal. Many death row inmates have gone four years without being assigned an attorney to start their appeal.[29]

In North Carolina, the state’s Supreme Court, which is led by a new chief justice (who replaced Chief Justice James Exum) and two new Republican justices, has turned a deaf ear to death penalty cases. In 24 death cases reviewed in 1995, the court upheld every conviction and sent only one case back for resentencing. By contrast, in 1993-94, the same court had ordered new trials in about 10% of the capital cases, and new sentencings in a quarter of the cases.[30]

In the Fifth Circuit of the U.S. Court of Appeals, which decides cases from three leading death penalty states, Texas, Louisiana and Mississippi, the court has been dominated in recent years by ultra-conservative appointments. As a result, while the national rate for granting federal habeas corpus relief has been about 40%, the Fifth Circuit has granted relief in less than 5% of its capital cases.[31]

Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case and the recent experience of judicial overrides confirms it. -Justice John Paul Stevens[32]

Political pressure on judges regarding death penalty decisions is most keenly felt when the judge, rather than a jury, makes the ultimate decision on a life or death sentence. In nine death penalty states, judges determine whether a defendant is to receive a death sentence. In eight of these nine states, the judges are subject to elections to retain their positions.[33]

In four of the states where the judge makes the decision on sentencing, a jury first recommends a sentence, thereby giving an indication of what the citizens closest to the evidence believe is an appropriate sentence. This jury recommendation, however, can be overridden by the judge. Not surprisingly, elected judges predominantly overturn life recommendations and impose death; rarely do they reject a jury’s vote for a death sentence and replace it with a life sentence. In Florida, Alabama and Indiana, where judges are subject to re-election, they have imposed death sentences in 189 cases in which the juries had first recommended life. Judges reversed death recommendations in only 60 cases.[34] In Alabama alone, elected judges overturned recommendations of life sentences and imposed death sentences more than ten times as often as they rejected recommendations of death. The only exception to this trend has been in Delaware, where the judges are not subject to election. All seven of their jury overrides have been in favor of life sentences.[35]

The practice of judges discarding jury recommendations without even having to explain their actions was brought before the Supreme Court in Harris v. Alabama.[36] The Justices upheld the practice over the dissent of Justice John Paul Stevens. He recognized that elected judges are subject to the increasing public cries for vengeance. He warned that judges with their eye on the next election are vulnerable to the same political pressure which make virtually every politician want to appear tough on crime. When these judges are given the authority to throw out a jury’s life sentence recommendation and replace it with the death penalty, it distorts the checks on judicial power so carefully woven into our system of government. Justice Stevens wrote:

Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case and the recent experience of judicial overrides confirms it.[37]

In discussing why elected judges may favor the death penalty, Justice Stevens pointed to the “higher authority” of political pressure:

The “higher authority” to whom present-day capital judges may be “too responsive” is a political climate in which judges who covet higher office—or who merely wish to remain judges—must constantly profess their fealty to the death penalty … . The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.[38]

A Noose Over the Courthouse Tree

In Florida, one judge known for politicizing the death penalty was Judge William Lamar Rose. When the U.S. Supreme Court temporarily overturned the death penalty in 1972, Judge Rose publicly protested the decision by slinging a noose over a tree limb on the courthouse lawn. When the death penalty came back to Florida he was handed the discretion to use that noose despite a jury’s vote for life. He quickly to overturned a jury’s unanimous life recommendation for Doug McCray, a former honor student and star athlete who suffered from alcohol-induced blackouts. Judge Rose sentenced McCray to death, a decision later reversed by the Florida Supreme Court.[39] The “higher authority” to whom present-day capital judges may be “too responsive” is a political climate in which judges who covet higher office—or who merely wish to remain judges—must constantly profess their fealty to the death penalty . -Justice Stevens

Another Florida judge, Richard Stanley is also an outspoken supporter of the death penalty. At the capital trial of Raleigh Porter, the judge brought out his brass knuckles and gun for all in the court to see.[40] When challenged in a debate around the time of trial on whether he could pull the switch on the electric chair he said: “Well, I will go along with that as long as they allow me, right after I pronounce the sentence, to reach down by my left leg and come up with my pistol and shoot ‘em right between the eyes.”[41] But the jury, considering the fact that Porter was young and that he had no significant criminal history, voted unanimously that he receive a life sentence. Judge Stanley promptly ignored the jury’s recommendation and imposed a sentence of death.

Apparently, Judge Stanley had made up his mind about the death sentence long before the penalty trial, the constitutionally required hearing at which evidence concerning the appropriate sentence is presented. Judge Stanley acknowledged his prejudgment of the case: “When the judgment was brought out by the jury that he (Porter) was guilty, I knew in my own mind what the penalty should be, and I sentenced him to it.”[42] Stanley has said he would make the same judgment of death if given another chance today. “Very frankly,” he said when questioned about the sentence, “I don’t give a damn about it.”[43] Well, I will go along with that as long as they allow me, right after I pronounce the sentence, to reach down by my left leg and come up with my pistol and shoot ‘em right between the eyes. -Judge Richard Stanley

Judge Stanley’s court clerk recently testified that the judge had indicated he intended to sentence Porter to death even before Porter was found guilty. The clerk, Jerry Beck, has stated that Judge Stanley had Porter’s trial moved to Glades County because, according to Judge Stanley: “[W]e had good, fair-minded people here who would … consider the evidence and then convict the son of a bitch.” “Then,” the judge told Beck, “he would send Porter to the chair.”[44] This conversation between Beck and Judge Stanley occurred before Porter’s trial. These revelations have resulted in a stay of Porter’s execution and a decision regarding a re-trial is pending.

Sometimes innocent defendants are caught up in the zealousness of the judge to impose a death sentence. Walter McMillian had been placed on death row in Alabama even before his trial. He was a black man accused of murdering a well-liked young white woman. McMillian was already unpopular because he was dating a different white woman. After the murder had gone unsolved for months, the police convinced some witnesses to testify against McMillian. Ironically, the trial occurred in Monroeville, the hometown of Harper Lee and the setting of her famous novel about racial injustice, “To Kill A Mockingbird.” Through his arrest and trial, McMillian maintained his innocence. The evidence against him was weak. The jury convicted him of murder, but given the lack of physical evidence, they recommended a life sentence.[45] But the judge, Robert E. Lee Key, had the ultimate decision on sentencing.

Judge Key is a native of Alabama whose great-grandfather had owned a plantation and thirty slaves. His grandfather had served in the Confederate Army. When McMillian’s life was placed in Key’s hands, he rejected the jury’s caution in this racially charged case and declared, “The only appropriate sentence is death by electrocution.”[46] Six years later the key witnesses from the trial admitted that they had lied. In their zeal to solve this troubling murder, the prosecution had focused on the wrong man and the judge overruled the jury and sentenced him to die. But for the extraordinary intervention of the Alabama Resource Center in showing his innocence, he would have been executed.

It is impossible to know why Judge Key acted as he did, since the law does not require any explanation in overriding the jury. But when a black man is convicted of killing a young white woman in a small, outraged southern town, and the judge, who is subject to election, is given the power to make a strong political statement through his sentencing, there is great danger of improper influence. When a black man is convicted of killing a young white woman in a small, outraged southern town, and the judge, who is subject to election, is given the power to make a strong political statement through his sentencing, there is great danger of improper influence.

The Alabama judge who has most often overridden jury recommendations for life sentences is Judge Braxton Kittrell. He recently turned aside a jury recommendation for a life without parole sentence for Michael Shawn Barnes. Barnes was 17 years old at the time of his crime, is borderline mentally retarded, and suffers from mental illness. Even some of the victims’ family members objected to a death sentence. Nevertheless, Judge Kittrell took out his full fury on Michael Barnes in rejecting the jury’s decision for mercy: “You are vicious, and you are a cold-blooded murderer,” he said at sentencing. “You are entitled to just as much mercy from this court as you showed your victims.”[47]

Judge Robert McGregor of Seminole County, Florida, disregarded an uncertain jury’s recommendation of a life sentence for Joseph Spaziano and sentenced him to death. The jury had considerable trouble reaching a guilty verdict in the case. The key witness against Spaziano was a drug-addicted teenager aiming to please the police to help his own case. The witness had to be hypnotized and guided in “remembering” a conversation with Spaziano about the location of the victim’s body. After a difficult debate about the evidence, the jury twice told the judge they were deadlocked. The judge gave them a “dynamite charge” instruction, essentially telling them they had to reach a verdict. They finally returned a guilty verdict, but perhaps because of their uncertainty they quickly recommended a life sentence for Spaziano.[48]

Despite the questionable reliance on a hypnotized witness (a reliance which is no longer allowed in Florida courts), Judge McGregor overruled the jury and imposed a death sentence. He was re-elected as judge and continued to serve for twenty years while Spaziano sat on death row. In February, 1996, after an admission by the hypnotized teenage witness that he had made up his story about being shown the victim’s body, Spaziano’s conviction was overturned. Spaziano came close to execution on at least five occasions. Now he will either receive a new trial or be freed from death row.[49] While Spaziano was seeking a new trial, Judge McGregor offered to come back from his retired status to hear the case, despite the fact that he had made recent comments to the press about Spaziano’s guilt.[50]

Judging in a Pro-Execution Climate

Even where the ultimate decision about the death sentence is in the hands of a jury, the presiding judge can influence the outcome in a variety of ways. Often the judge decides who is to be appointed to defend an indigent defendant, how much the attorney will be paid, and how much will be allowed for the experts critical to a capital case defense. By appointing attorneys who will put up only an emaciated defense of their client, who will submit few pretrial motions, who will make few requests for experts, investigators and other resources, a judge can seal a defendant’s fate without even ruling against the defendant at trial. Some attorneys with dismal records get appointed again and again in capital cases, while others who are known for their vigorous defense are excluded.

In Houston, Texas, judges appoint attorneys like Ron Mock, despite his failing record of having 12 of his 15 capital case clients get the death penalty, or Joe Frank Cannon, who boasted of hurrying through his trials “like greased lightning.” Ten of his clients have been sentenced to death—not surprising given that Cannon has been known to fall asleep during trial.[51] Judge William Harmon stated to the defendant during trial that “[h]e was doing God’s work to see that (the defendant) was executed.”

Other Texas judges have expressed outright disdain for rudimentary due process in death penalty cases. Judge William Harmon, a former prosecutor, during jury selection stated to the defendant that “[h]e was doing God’s work to see that (the defendant) was executed.”[52] The same judge taped a photograph of the “hanging saloon” of the infamous Texas judge, Roy Bean, in front of his bench in full view of the jurors. In making rulings during the trial, Harmon repeatedly referred to the conservative Texas Court of Criminal Appeals as “liberal bastards” and “idiots.”[53] Another Texas judge, John Martin, set the execution date of a defendant on his clerk’s birthday as a “present.” Still another judge insisted on callously signing his death warrants with “smiley faces.”[54]

Ignoring the complexities of death penalty cases and court backlogs caused by other factors, some groups attack more careful judges as the root of their problems. Crime Victims United in California, for example, plans to use its political action committee funds this year to oust judges who take “too long” to start death penalty trials: “The judges should say, ‘This is it. Be ready to start and let’s get to it,’” said Harriett Solarno who leads the group.[55]

Judges, and those seeking to be judges, are sensitive to these veiled threats to their remaining in office. This is reflected in their election campaigns. In the information supplied by the candidates for a superior court judgeship in California, John Quatman listed as one of his primary qualifications the number of “killers” he had sent to death row as a prosecutor.[56] Other candidates, like Judge Bob Austin in Alabama or Louisiana Supreme Court Justice Jack Watson, prominently mention their toughness on the death penalty in their campaign literature. Another Alabama judge, Mike McCormick, proudly proclaims that he is, indeed, “too tough on criminals.”[57] In Texas, Rene Haas, a candidate for the state Supreme Court, advertised her “strong support for the death penalty,” even though the Texas Supreme Court does not handle any criminal appeals.[58]

Judge Austin’s campaign particularly highlights the conflict of interest which Justice Stevens warned about when he wrote: “A campaign promise to ‘be tough on crime,’ or to ‘enforce the death penalty,’ is evidence of bias that should disqualify a candidate from sitting in criminal cases.”[59] Austin was assigned the death penalty trial of Ricky Adkins two weeks before the election for the circuit court judgeship for which he was a candidate. Austin refused to continue the case even though he was running a “law and order” campaign, refused to disqualify himself, and refused a request for a change of venue. All these stories made front page news just before the election. Austin presided over the trial, and Adkins was convicted in short order. Austin won the judicial election and then imposed the death penalty on Adkins.[60]

“[T]he Democrat party places far too much emphasis on representing minorities … people who don’t want to work, and people with a skin that’s any color but white.”

—Press release of Judge Earl Blackwell while presiding over a capital case with a black defendant

In Missouri, Judge Earl Blackwell issued a signed press release related to his judicial election announcing his new affiliation with the Republican Party while presiding over a death penalty case against an unemployed African-American defendant. The press release stated, in part:

• • [T]he Democrat party places far too much emphasis on representing minorities … people who dont’ (sic) want to work, and people with a skin that’s any color but white … . I believe the time has come for us to place more emphasis and concern on the hard-working taxpayers in this country … [the] majority group of our citizens seems to have been virtually forgotten by the Democrat party.[

61]

The judge denied a motion to recuse himself from the trial. The defendant, Brian Kinder, was convicted and sentenced to death.

Under the changes in federal review incorporated into the “Antiterrorism and Effective Death Penalty Act of 1996,” the decisions of elected state judges will be given even more weight than they are at present. Death row inmates will be severely restricted in obtaining review of their cases by independent federal judges, who are not subject to elections.[62] Without the added incentive of close scrutiny by federal judges of the constitutionality of the state proceedings, it is quite possible that state judges will be influenced even more by the power of politics and the next election.

I gave in to the prestige and power, the things that went with my job. I knew what the Governor … wanted: no recommendation for clemency in any death case. -Howard Marsellus, former Chair of Louisiana Pardon Board[63]

Judges are not the only ones in elected office for whom the death penalty offers political opportunities. Attorney generals, prosecutors, and members of the state pardon boards can get caught up in this political competition, with dire consequences.

In Ohio, Attorney General Betty Montgomery recently demonstrated political brinkmanship in death penalty prosecutions. In January, 1996, death row inmate Robert Buell had not yet filed his first federal habeas corpus petition. Almost all death row inmates seek such review, and Buell had filed a notice of intent to do so. Stays of executions are routinely granted, and attorneys are appointed for these important proceedings. Nevertheless, the State of Ohio set Buell’s execution date, and a federal judge refused to grant a stay because the actual petition had not yet been filed.[64]

The U.S. Court of Appeals for the Sixth Circuit did, however, grant Buell a stay two days before his scheduled execution so that this routine filing and review could take place. Attorney General Montgomery waited to a few hours before execution to file an appeal to the U.S. Supreme Court to allow the execution to go forward, thereby deliberately creating an eleventh hour crisis in which the whole state mobilized for its first execution in over 30 years.

Even though this was a case that had not yet been through the normal review process, the Attorney General called an afternoon press conference condemning the delay in executions. She admitted that the scrambling defense attorneys would almost certainly be able to obtain a stay of execution. Nevertheless, she was willing to push the system to the breaking point, taking a chance with a man’s life, to make a political point.

To further heighten the drama, Robert Buell was moved to the death house at the Lucasville penitentiary. The victim’s family was also put on alert, awaiting what they thought was a possible execution, their expectations toyed with in a macabre dance of death. Protesters gathered outside the prison gates.

A spokesman for the Attorney General showed little respect for due process or the psychological effects of this brinkmanship: “The guy deserves to be executed, so we have no concern about carrying out the sentence given,” said Mark Weaver. He admitted, however, that this pushing for an execution was mainly for show: “We recognize the reality of the system is such that he (Buell) will probably be able to file federal appeals.”[65]

The previous Ohio Attorney General, Lee Fisher, had played this same dangerous “game of chicken” with the fate of John Byrd in March, 1994. Byrd, too, had not had an opportunity for even a first federal review when the state went directly to the U.S. Supreme Court to try to lift a stay of execution.[66] Byrd, like Buell, remains on death row in Ohio. In both cases, the prosecutor lost the legal battle, but still sent a political message: Ohio’s top law enforcement officer is pushing for the death penalty. Attorney General Montgomery admitted as much after the Supreme Court turned down her fabricated appeal: “We did what we wanted, and that’s to send a message that we will squeeze and slow down the gaming of the system.”[67]

After her January press conference and staged preparation for execution, Attorney General Montgomery again played the death penalty card by becoming publicly involved in the state appeals process, something none of her predecessors had done in the 16 years since Ohio’s resumption of capital punishment. She began calling individual prosecutors, telling them that if they didn’t have time to file responses to appeals in their capital cases, she would be glad to do it for them.[68]

She also unveiled new legislation to speed Ohio’s executions. One section of the bill would disqualify any death penalty defense attorney from future appointment to capital trials if a court had ruled that he had been ineffective in a previous capital case.[69] (No similar sanctions applies to prosecutors or judges who err.) This measure would have the chilling effect of keeping capital defense attorneys from admitting they made a mistake in a death case, an important part of mounting an appeal on this issue. Under the new legislation, if the attorney admits she erred in representing a former client, she could lose part of her future livelihood.

Moreover, this whole attack on defense attorneys was mainly political. The Ohio Supreme Court Chief Justice, Thomas Moyer, called it “a solution without a problem.”[70] While there have been instances of poor representation in Ohio, no Ohio death penalty convictions have ultimately been overturned because of ineffectiveness of counsel since the death penalty was reinstated.[71] But punishing death penalty lawyers plays well in an election.

In Pennsylvania, another case of high stakes manipulation of the death penalty actually did result in the premature execution of an inmate. Leon Moser, a former mental patient, apparently wanted to be executed, but it was not clear that he was mentally competent to make that decision. A federal judge ordered a competency hearing and stayed the execution. That stay was appealed by the state’s Attorney General and was lifted by a higher court, even though the judge’s order for the competency hearing remained. The state pushed ahead with the execution before the scheduled competency hearing.[72]

As the execution approached, the federal judge called the state’s attorney to see if there was a cellular phone at the prison. He wanted to interview Moser by phone to get some idea of Moser’s mental state. He was told there was no cellular phone, which was literally true. He was not told, however, that there was a standard phone in the execution chamber. By the time the judge was able to get through to the chamber, the lethal chemicals were already flowing into Moser, and it was too late.[73]

No Pardon for Anyone

This is the climate in which the death penalty is pushed beyond the rules. The pervasive power of this pro-execution atmosphere was underlined by the execution of Timothy Baldwin in Louisiana. Howard Marsellus, a former chair of Louisiana’s Pardon Board, was serving on the Pardon Board at the time of Baldwin’s clemency hearing. Marsellus described his strong reservations about Baldwin’s guilt and relayed his concerns to the Governor:

When we left the [Pardon Board] hearing and went behind closed doors to decide Baldwin’s fate, I just couldn’t convince myself that the man was really guilty and deserved to die, and right there from the room where we were meeting I called the governor’s office. His chief legal counsel, Bill Roberts, came to the phone, and when I told him about the case—I was upset, I was crying—I said that if our job was to dispense mercy, that this seemed as clear a case for mercy that I had yet seen, but Roberts told me that I knew the governor did not like to be confronted with these cases and wanted us to handle it.[74]

After the telephone conversation, the Board rendered its unanimous decision upholding Baldwin’s death sentence. Marsellus later commented, “I lacked the courage to vote on the basis of how I felt and what I believed. I gave in to the prestige and power, the things that went with my job. I knew what the Governor, the man who had appointed me, wanted: no recommendation for clemency in any death case.”[75]

Executions At Any Price

Although government frugality usually makes for good campaign pitches, when it comes to the death penalty that tack is abandoned. In Texas, death penalty cases cost over $2 million apiece,[76] and the state has over 400 people on death row. Almost a third of Texas’s death row comes from Houston, where chief prosecutor Johnny Holmes says that cost and time are not factors he worries about in pursuing the death penalty.[77]

In California, which has just come out of an economic recession, the Governor is now asking for an expenditure of an additional $23 million per year to speed up executions.[78] This extra expense comes on top of the estimated additional $90 million per year which the state is already spending to have a death penalty.[79]

California’s Attorney General campaigned for years for Congress to shorten the federal review process in death penalty cases. Ironically, when Congress finally did so in April, 1996, California’s system of providing lawyers for death row inmates did not even meet the minimal criteria required by Congress for states to take advantage of the speedier process.[80]

Politics not only interferes with the fair administration of the justice system, it sometimes ends up slowing the pace as well. Last year, Texas jumped on the bandwagon of states trying to speed up their executions. Cutting the appeals process was easy, but supplying the funds to provide even a minimum of representation so that the appeals could be completed proved impossible.

Last year, Texas executed 19 people. This year there have been only 3 executions (two of whom were “volunteers”) because the state legislature curtailed the appeals process but created a legal crisis which the courts have not yet resolved. Since the legislature did not provide anywhere near the necessary money for attorneys to bring the appeals allowed, counties are being told to find their own money for the appeals. Even the prosecutors are critical of the legislature’s ignoring the problem. “They want to have a death penalty without paying for a death penalty,” said Bexar County Assistant District Attorney Ed Shaughnessy.[81]

In Georgia, where some counties have been pushed to the brink of bankruptcy because of expensive capital cases, Cobb County District Attorney Tom Charron announced he will seek the death penalty against Fred Tokars for the murder of his wife. Tokars has already been convicted of this crime under a federal prosecution and is currently serving four life terms without the possibility of parole. It is expected that the trial of Tokars will cost taxpayers more than a million dollars, to pursue a defendant who has already been tried and convicted of same crime, and who will never be out of prison again.[82] However, regardless of the outcome, there are political advantages in just seeking the death penalty in a highly publicized murder case.

The police officers’ and the prosecutors’ actions described in these findings were intentional, were done in bad faith, and are outrageous. -Federal Judge Kenneth Hoyt[83]

A prosecutor has enormous discretion to pursue either the death penalty or a life sentence; to accept or refuse a plea bargain; and to decide whether to put the full strength of the government’s power behind a particular prosecution. The elected prosecutor is aware that a death penalty trial will be given heightened media coverage. If an election is looming, a death penalty case provides a tempting opportunity to garner free advertising and to portray an image of toughness.

Generally, this broad discretion is unreviewable. As long as a case fits the minimum criteria, courts cannot second guess a prosecutor’s decision to make a particular murder case into a death penalty case. Moreover, once the decision to seek the death penalty is publicly announced, it is very difficult to reverse the process, even in the face of strong evidence of innocence.

A Notch On Their Guns

Some prosecutors brag about their death penalty convictions as if they were notches on their guns. They campaign for office, knowing that it is almost impossible to appear “too tough” on crime. For example, Bob Macy, the District Attorney of Oklahoma City, proudly lists as the first item in his campaign literature that he has sent 44 murderers to death row.[84]

Johnny Holmes, the District Attorney of Harris County, Texas, has made a career out of the death penalty. He has sent more people to the execution chamber since 1976 than any state, except Texas itself.[85] In the D.A.’s office is a chart entitled the “Silver Needle Society,” which lists all those from Harris County who have been executed by lethal injection.[86]

However, a recent death penalty decision in federal court sharply criticized the reckless attitude of some of the prosecutors in Holmes’s office. In overturning the capital conviction of Ricardo Guerra of Houston, Judge Kenneth Hoyt castigated the police and prosecutors: “The police officers’ and the prosecutors’ actions described in these findings were intentional, were done in bad faith, and are outrageous.”[87] He particularly pointed to the political side of this prosecutorial misconduct, which he said “was designed and calculated to obtain a conviction and another ‘notch in their guns’… .”[88]

Thanks largely to former Georgia District Attorney (now judge) Douglas Pullen’s capital prosecutions, the Chattahoochee Judicial District sent more people to death row than any other district in the state. But Pullen bent the rules to get those convictions. Pullen’s office was recently found to be improperly involved in assigning criminal cases to judges in Columbus, Georgia.[89] The capital cases were assigned to two former district attorneys who had preceded Pullen in office. Also, while Pullen was a prosecutor in Columbus, that office used over 83% of its discretionary jury strikes in capital cases against African-Americans.[90] When the Chief Justice of Georgia’s Supreme Court announced a plan to provide more effective representation for poor people facing the death penalty, Pullen denounced the plan as an attack on the death penalty.[91]

Pullen has continued his aggressive promotion of the death penalty since becoming a judge. In an interview before the Atlanta Olympics, Judge Pullen remarked: “[I]f you hurt one of my people, I’m going to come after you. Life imprisonment without parole is a weak sister. A horribly weak sister.”[92]

As prosecutor, Pullen sought and obtained the death penalty against Jerome Bowden, a mentally retarded black defendant. Those with mental retardation are likely to be of little help in their own defense, frequently express inappropriate emotions during trial, and are often extremely cooperative with the authorities pursuing their prosecution, thus making a death penalty conviction more likely. The execution of Jerome Bowden, who had an IQ of 59, was such an embarrassment to Georgia that shortly thereafter it passed a law excluding those with mental retardation from the death penalty. But Pullen said he would seek the death penalty again if faced with the same choice.[93]

Pullen was recently rewarded with a new Superior Court judgeship in Georgia. Two of the four Superior Court judges in the Chattahoochee Judicial District, Mullins Whisnant and William Smith, also obtained their seats on the bench after trying high-profile death penalty cases in the same prosecutor’s office. In his campaign for judgeship, Smith received his largest contribution, $5,000, from the father of a murder victim in a case in which Smith had won the death penalty.[94]

In Kentucky, Commonwealth Attorney Ernest Jasmin made a name for himself by obtaining a death sentence against the killer of two teenagers from Trinity High School. He then campaigned as the “Trinity Prosecutor,” taking ads in the high school newspaper and campaigning with one of the victims’ parents frequently at his side.[95]

In Nebraska, Attorney General Don Stenberg took the unusual step of attaching to his Supreme Court brief a personal letter urging the execution of Harold Otey, whom he described as a “vicious killer” who “still smirks at the family of the victim … .”[96] While pushing publicly for Otey’s death, Stenberg also sat as one of three decision-makers at Otey’s clemency hearing as two of his staff presented the state’s version of the murder.

One Way Discretion

Prosecutors who blanket the courts with death penalty prosecutions are rarely challenged for their choices. State’s Attorney Sandra O’Connor of Baltimore County, Maryland, and District Attorney Lynne Abraham of Philadelphia, have said that it is their policy to pursue the death penalty in every eligible case.[97] But their respective governors are unlikely to sanction them for abusing the law or being too aggressive in the use of the death penalty. However, when the Bronx (NY) District Attorney, Robert Johnson, hesitated to seek the death penalty in a highly publicized police killing, the Governor claimed this reflected a blanket policy violating death penalty law and quickly removed Johnson from prosecuting the case.

Johnson has never said unequivocally that he would always refuse to seek the death penalty. But he believes that such prosecutions contain an untenable risk of executing the innocent. The New York law does not require seeking the death penalty, but rather gives that discretion to the prosecutor. Johnson had been overwhelmingly re-elected by the people of the Bronx with full knowledge of his death penalty position. The Governor appointed the state’s Attorney General, Dennis Vacco, a zealous pro-death penalty advocate to prosecute the case and to decide whether the death penalty would be sought for the murder of Officer Kevin Gillespie.[98] Not surprisingly, Vacco opted to seek a death sentence.

Tragically, the case ended before the defendant, Angel Diaz, could even be tried. He was found hung, apparently by suicide, in his cell on Rikers Island. Governor Pataki’s callous remark after hearing that someone presumed innocent and in the state’s care had been found dead was: “Angel Diaz was a violent criminal; he died the same way. I mourn the death of Kevin Gillespie.”[99]

In Illinois, Assistant Attorney General Mary Kenney resigned because she decided that she could not pursue the execution of an innocent man. The Attorney General wanted her to challenge the appeals of Rolando Cruz, despite the fact that another man had confessed to the crime and that considerable evidence pointed to Cruz’s innocence.[100] Kenney relinquished her job, while James Ryan, who had twice prosecuted Cruz in the face of overwhelming evidence of his innocence, went on to become Illinois’s Attorney General. Later, Rolando Cruz’s conviction was overturned by the Illinois Supreme Court, and he was acquitted at retrial.[101] (His co-defendant, Alejandro Hernandez, who had also been sentenced to death, was likewise cleared and released.)

The political rhetoric around the crime issue obscures the chances for rational debate. The hyperbole surrounding the death penalty knows few bounds. Newt Gingrich, original sponsor of “The Effective Death Penalty Act” in the Contract With America, recently went back to Georgia campaigning for a mandatory death penalty for drug smugglers. Anyone convicted of bringing a commercial quantity of illegal drugs into the U.S. would be executed. Gingrich envisioned mass executions of 35 people at one time, to make an example. “I have made the decision that I love our children enough that we will kill you if you do this,”[102] he said at a fund-raising dinner in Athens, Georgia. To make things simpler, he would also eliminate most of the appeals in such cases.

Governor Gary Johnson of New Mexico recently proposed that children as young as 13 should be eligible for execution. He also included a veiled warning against judges who hesitate on the death penalty, saying that the death penalty decision is one for judges to make “and for the electorate to decide if they like what the judges are doing.”[103] I have made the decision that I love our children enough that we will kill you if you do this. -Newt Gingrich, proposing the death penalty for drug smuggling

Some politicians use the death penalty to attack their opponent even when that opponent stridently supports it. Attorney General Jeff Sessions of Alabama is well known for his endorsement of capital punishment. But Republican Senate candidate Sid McDonald saw an opening to attack Sessions because of Sessions’s agreement with a clearly correct ruling by the Alabama Court of Criminal Appeals in a death case. The court ruled that the trial court had sentenced a man to death using criteria that simply did not exist in the state’s death penalty law. This unanimous ruling obviously required overturning the defendant’s death sentence. To McDonald, however, the law was irrelevant: “Murder is murder,” he said in his campaign ad attacking Sessions. “No legal technicality can change that. As senator, I’ll fight for victims’ rights, not criminal rights.”[104]

In Nevada, Attorney General Frankie Sue Del Papa accused the U.S. Court of Appeals of being “biased against capital punishment”[105] because the review of her state’s cases was taking too long. She did not mention, however, that it was her office that was guilty for at least some of the delays by failing to respond to petitions. Judge Michael Griffin noted that in the case of Thomas Nevius, for example, “the attorney general’s office did nothing” from 1989 until 1994.[106] And if we get a few innocent people, fine and dandy with me. I’ll take the percentage, folks, because I don’t want to put my children at risk anymore. -Rep. Leslie Johnson

Dan Lungren, the Attorney General of California, uses the death penalty as a way of raising funds for his campaigns and travels to Washington, DC to urge legislative changes to shorten the appeals process in capital cases. His fundraising letter, on official state letterhead, calls the appeals process a “loophole in the criminal justice system.”[107] Lungren is so eager to get publicity to show his support for executions that he recently issued a press release criticizing state-funded defense lawyers for bringing gifts of cookies and tennis shoes to a death row inmate. The press release was factually inaccurate, but it demonstrated Lungren’s fear that the defendant, who previously had requested a quick execution, might decide to pursue the federal review to which he is entitled and slip out of the state’s grasp.[108]

South Carolina’s Attorney General, Charles Condon, has also used the death penalty to thrust himself into national politics. Condon was one of the principal forces behind Congress’s withdrawing all funding from the death penalty resource centers. With one stroke, he managed to not only take away the resources available to his opponents in court, but he also became known as a crusader against death penalty appeals. The fact that such a drastic cut in resources for those facing execution might actually bog down the system and cost the government more than the amounts granted to the resource centers did not stop Condon and others from scoring their political points at the expense of an orderly system of justice.[109]

Politicians know the secret of rallying support for themselves by frightening the public. In Arizona, state Representative Leslie Johnson (R-Mesa) called for the death penalty for child molesters after a horrendous crime in Yuma. On the floor of the House, Johnson proposed the quick fix: “If we do away with these people, if we do have the death penalty and if you are a sex offender, you’re just out of here — dead, gone. And if we get a few innocent people, fine and dandy with me. I’ll take the percentage, folks, because I don’t want to put my children at risk anymore.”[110]

Because of the politicization of the crime issue, there has been a systematic exclusion of those who oppose the death penalty at many levels of government, particularly the judiciary. One’s position on this single issue can trigger ostracism from public office, despite overall high qualifications. Many of America’s most respected citizens, people like Martin Luther King, Jr., Justices William Brennan, Thurgood Marshall, and Harry Blackmun, would probably not be appointed to any federal court today. The judiciary, along with the realm of elected officials, are becoming almost completely devoid of people who hold this minority point of view. Even National Public Radio dropped a series of radio programs from the perspective of a death row inmate after outcries from Senator Robert Dole and some members of the law enforcement community.[111]

After the Willie Horton scare of 1988, Bill Clinton in 1992 made his willingness to execute people crystal clear by leaving the campaign trail to preside over the lethal injection of a severely brain-damaged inmate in Arkansas. Since becoming President, he has supported a huge expansion of the federal death penalty to sixty offenses, including some crimes in which no murder has occurred. He has signed into law a budget bill which withdrew all support from the death penalty resource centers, and supported an “anti-terrorism” bill which may cripple access to the federal courts for those on death row.

Since the pro-death penalty platform has already been staked out by President Clinton, Bob Dole has tried to position himself as the one in favor of even faster executions and even tougher judges. Using a photo opportunity in front of the nation’s largest death row in San Quentin, California, Dole called for the impeachment of federal Judge Harold Baer and for the acceleration of executions. Not to be outdone on crime, Clinton’s spokesman quickly replied that the President, too, supported drastic cuts in federal appeals for those on death row.[112]

The whole subject of death penalty appeals has become an opportunity for political grandstanding. The latest version of this manipulation involved lining up survivors and family members from the Oklahoma City bombing to drum up support for cutting federal review of death penalty cases, under the guise of fighting terrorism.[113] When the stronger anti-terrorism provisions of the proposed bill became too controversial, they were dropped, and even proponents of the legislation admitted, “The death penalty is the essence of this bill.”[114]

What was left unsaid, however, is that these changes in the habeas corpus law have nothing to do with terrorism. Furthermore, the Oklahoma City bombing trial is a federal case and hence will never involve federal courts reviewing state court decisions. Finally, thanks to a carefully orchestrated campaign to push this legislation, the media has failed to report that some Oklahoma City bombing relatives are opposed to this rush to execution.

The final step in the death penalty process is the consideration of clemency by the governor. However, because the process has become so politicized in recent years, clemencies have become extremely rare. There has been only one commutation in the entire country in each of the last four years. Earlier in the century, clemencies were given in roughly 20% of capital cases.[115] But recently, few governors have had the courage to grant even a single clemency during their term in office.

Instead of clemency, one of the most popular techniques which pro-death penalty governors have used in recent years is the artificial acceleration of death warrants. For an electorate which has been made hungry for faster executions, the warrant signing scheme has several advantages. First, it gives the appearance that the death penalty process is being speeded up. Second, it enables a governor to numerically compare himself with his or her predecessor on a toughness scale. And third, when the death warrants inevitably are not carried out at the same pace at which they are signed, the governor can blame the courts or defense lawyers as the “real problem.”

This manipulation of the criminal justice system has more than political ramifications. A death warrant sends the legal system into a frenzy. Stays of execution must be fought for, even before an appeal can be filed. Layers are added on to an already complex process. And if the number of warrants becomes excessive, there may not be attorneys available to handle the sudden avalanche of litigation. An unrepresented defendant could easily fall through the cracks and be executed without legal representation. In 1989, the Committee appointed by Chief Justice Rehnquist to study death penalty appeals, strongly recommended that such review “be free from the time pressure of an impending execution and with the assistance of competent counsel … .”[116]

Bob Martinez of Florida was a master at threatening executions, signing 139 death warrants in four years, twice the pace of his predecessor, Bob Graham, and many times the pace of the next governor, Lawton Chiles. Martinez would sign five warrants at a time, often out of chronological order.[117] He campaigned in front of the image of a death row inmate he had sent to the electric chair. However, executions proceeded at about the same pace during all three governors’ terms—it was only the pace of death warrants that was accelerated. Nevertheless, this process put enormous burdens on the courts and on those assigned to represent the death row inmates.

Governor Tom Ridge of Pennsylvania also came into office with promises of accelerating the death penalty. He has signed at least 41 death warrants since becoming governor in 1995.[118] There have been two executions in Pennsylvania, but both were of inmates who waived their appeals. Again, the warrants created the impression that Ridge is hard-nosed and succeeded in overwhelming the severely strapped indigent defense system which has to respond to each of these execution threats.

Although crime has often been a staple for political speeches, the recent emphasis on the death penalty interferes with the essential impartiality of the justice system. When judges who will decide whether a defendant is to live or die, and who even have the power to reject the unanimous vote of jurors, run for office by proclaiming how tough they will be on criminals, fairness is threatened. When prosecutors who will make key decisions on how often, and against whom, to seek the death penalty run for office on their capital punishment record, it invites abuse.

Politicians fan the flames of this spiraling effort to seek more death judgments and faster executions by making allegiance to the death penalty a litmus test for public office. This single issue is excluding highly qualified candidates from seeking or obtaining office. It is becoming increasingly difficult for a rational debate on the value of capital punishment to take place, when the slightest hesitation on the death penalty brands one as weak on crime. Ultimately, the death penalty compromises the integrity of the justice system itself as individual rights are sacrificed in an effort to score political points.