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U.S. Senators Question Justice Department's Plan to Expedite Executions

U.S. Senators Patrick Leahy (D-VT) (pictured) and Arlen Specter (R-PA) are urging the Justice Department to delay new rules that would give Attorney General Alberto Gonzales authority to limit the time death row inmates spend pursuing appeals before being executed. Senator Leahy chairs the Senate Judiciary Committee, and Sen. Specter is the ranking Republican member of that committee. The two recently sent a bipartisan letter to Gonzales expressing concerns about whether states have adequate protections in place to ensure competent legal counsel for indigent defendants facing the death penalty. "States must be required to take meaningful steps to guarantee adequate representation of death row prisoners before certification occurs. This is especially important in light of the accelerated timing and abridged federal court review. ... It is crucial that the legislative changes to this complex and heavily litigated area of the law be successfully and appropriately implemented, especially given the tremendous stake for individual defendants," the Senators wrote.

The newly proposed regulations stem from passage of the Patriot Act, legislation that gives the Attorney General new power to approve requests from states seeking mandatory deadlines for capital defendants who wish to appeal their cases to federal courts. The law requires that the Attorney General decide whether a state has a system in place to provide representation for those facing the death penalty, but some experts feel the new regulations fail to ensure that these attorneys are adequately prepared to handle such cases. "All a state has to do is report it has a system. There seems to be no mechanism that's going to hold them to determining if a system is in fact in place, and if it functions so as to ensure that people are not wrongfully convicted and sentenced to death. That really should concern Americans, "said Kathryn Kase, co-chair of the death penalty committee for the National Association of Criminal Defense Lawyers.

The Senators, who share Kase's concerns, have asked Gonzales to delay implementation of the rules until October 5 at the earliest. They note that this change will allow additional time to make sure the new regulations include specific and clear representation guidelines. The Justice Department is currently planning to enact the rules following a public comment period that ends on September 23. (Associated Press, August 15, 2007).

NEW VOICES: Former Ambassador to France Addresses Impact of Death Penalty on Foreign Relations

 In an op-ed in The New York Times, Felix G. Rohatyn, the U.S. Ambassador to France from 1997 to 2001, noted that during his tenure "no single issue was viewed with as much hostility as our support for the death penalty." Rohatyn urged the U.S. to consider the impact of maintaining capital punishment on our relations with our allies, and he stated that consideration of international trends is appropriate when cases are reviewed by the Supreme Court. Rohatyn wrote:

During my four years as the American ambassador to France, I discovered that no single issue was viewed with as much hostility as our support for the death penalty. Outlawed by every member of the European Union, the death penalty was, and is, viewed in Europe as a throwback to the Middle Ages. When we require European support on security issues — Iran's nuclear program; the war in Iraq; North Korea's bomb; relations with China and Russia; the Middle East peace process — our job is made more difficult by the intensity of popular opposition in Europe to our policy.

Several years ago, Justice Anthony Kennedy spoke to the senior staff of our embassy in Paris on this issue to help them explain our position to a very hostile French audience. I was agreeably surprised when he indicated his belief that sooner or later, we would have to take into account the views of Europeans in determining what constitutes "cruel and unusual punishment."

Last March, the Supreme Court, in a 5 to 4 decision, abolished capital punishment for juvenile offenders, concluding that the death penalty for minors is indeed cruel and unusual punishment. "Our determination," Justice Kennedy wrote in the majority decision, "finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."
. . .
[G]lobalization has made it not only "appropriate or useful" but vital to look at foreign laws. It is in our interest to be aware of their impact whether they concern antitrust, food safety or the death penalty. Contempt for the laws of our allies is a major factor in our increasing isolation in the world . . . . (New York Times, January 26, 2006).

Bush and Kerry Express views on Executing Juvenile Offenders

In a forum hosted by the New Voters Project, U.S. Presidential candidates George Bush and John Kerry expressed their views on executing juvenile offenders. "Federal law prohibits execution of those under 18 when the offense was committed, and I see no reason to change that statute," said President Bush. Senator John Kerry stated, "I do not think that executing minors is good policy." (Knight-Ridder, October 17, 2004). On October 13th, the U.S. Supreme Court heard oral arguments in Roper v. Simmons, a case that will determine whether the execution of juvenile offenders is constitutional. See Juvenile Death Penalty. See also, Positions on Capital Punishment of the 2004 Presidential Candidates.


Lawmakers Apologize to the 100th Person Freed From Death Row

Several members of the Arizona House and Senate recently offered apologies to Ray Krone (pictured), a former Arizona death row inmate who was freed in 2002 following new DNA tests. The apologies followed standing ovations from members of the state's House and Senate when Krone was introduced to the legislators in each chamber during floor sessions. Krone, who now travels the nation educating people about the problems with the death penalty, accepted the legislators' apologies and stated, "It's a recognition from actual elected officials of the wrong that was done in the name of the State of Arizona." Arizona Senate Judiciary Chairman John Huppenthal said that Krone's case shows that corrections are needed to protect the innocent, noting, "This is happening more frequently than we would like to admit." Another legislator, Representative Phil Lopes, said that Krone's case "exemplifies why we should abolish the death penalty" in Arizona. (Associated Press, February 21, 2006).

Author of Arizona's Death Penalty Law Has Second Thoughts

When Justice Sandra Day O'Connor was a senator in Arizona, one of the people she asked to draft the state's death penalty law was Rudolph Gerber. She requested that he "write a law we can live with." Mr. Gerber went on to become a prosecutor, an Arizona trial judge, and eventually a judge on the Arizona Court of Appeals for 13 years. He recently expressed his changing views on capital punishment as he experienced how the law was put into practice:

"My experience, not atypical by any means, revealed some intractable trial court problems surrounding the death penalty. For one thing, prosecutorial discretion to seek death remained exactly what it had been when I was a prosecutor--unstructured and capricious, with elected county attorneys usually deciding to pursue it at their whim in a high-profile case offering the prospect of political advantage. For another, capital codefendants were offered widely disparate plea bargains that, though intended to secure testimony against the supposedly more culpable offender, sometimes punished the less culpable and rewarded the more culpable...

"In addition, legislators crafting capital legislation with gusto lacked firsthand knowledge about the many types of individuals within the universe of first-degree murderers....Elected county attorneys and legislators touted capital punishment without any realistic understanding of these differences or of capital sentences' caprice, infrequency, small 'return,' and above all, the financial drain on law enforcement monies otherwise usable for more effective tools of crime fighting." (R. Gerber, "Survival Mechanisms: How America Keeps the Death Penalty Alive," 15 Stanford Law & Policy Review 363, 374 (2004)).

In another article, former Judge Gerber analyzed the requirements for a punishment to act as a deterrent to crime, namely: swiftness of application, certainty of receiving the punishment, proportionality to the severity of the crime, and public exposure to the punishment being carried out. His article finds the death penalty to be seriously lacking on all counts:

"Our nation's history of capital punishment demonstrates a steady departure from the four requirements needed both for deterrence and for rational calculation of disincentives. Our capital punishment system is not swift because the appeals process takes many years, with the average death row resident spending well more than a decade on death row after the commission of the original murder. Our capital punishment is not certain because only a miniscule number of murders receive the death sentence, and even among those so sentenced, only one in ten is actually executed. Capital punishment no longer mirrors the severity of the original killing because lethal injection has made execution physically painless. Perhaps most notably absent among these requirements, executions today are no longer public events accessible either firsthand or even via detailed media accounts. They have moved progressively from the town square to the jail yard to the privacy of the execution room where the few witnesses are not those needing to learn the deterrence message--paradoxically, the only audience present is the wrong one ...

"We should not be surprised then that law enforcement officials as well as criminological scholars regularly conclude that capital punishment offers no prospect of deterrence....To capital punishment enthusiasts and economic theorists alike who urge deterrence as a realistic goal of capital punishment, our execution history from colonial days to the present shows deterrence falling so far below these requirements as to be not only illusory but beyond recapture." (R. Gerber, "Economic and Historical Implications for Capital Punishment Deterrence," 18 Notre Dame Journal of Law, Ethics & Public Policy 437, 449-50 (2004)).

Arizona Legislators Voice Concerns About State's Death Penalty

As Arizona legislators consider reforms to the state's death penalty in light of the Supreme Court's decision in Ring v. Arizona, a number of State House members have come forward with concerns about Arizona's capital punishment statutes. Rep. Gabrielle Giffords, who was elected as a supporter of capital punishment, now questions whether executing inmates makes any sense because she believes the death penalty does not deter crime. Rep. John Huppenthal, a Republican, noted that after the release of the nation's 100th innocent death row inmate, Ray Krone in Arizona, he now supports a moratorium on executions until it is clear that the system protects the innocent. Rep. Henry Camarot urged his colleagues to apply any changes in the law retroactively. Under current legislative proposals, approximately 100 Arizona death row inmates who were sentenced by judges - a practice that was affected by the Ring ruling - and who have exhausted their appeals would not be entitled to resentencing with a new jury. (Arizona Daily Star, July 26, 2002). See also DPIC's Web page, U.S. Supreme Court: Ring v. Arizona.


California Legislator Calls for Special Commission to Review Death Penalty

California Senator Gloria Romero of Los Angeles, who chairs the Select Committee on the California Correctional System, is calling for a special commission to study the state's death penalty. After a Senate hearing featuring more than a dozen witnesses, including prosecutors, defense lawyers, prison officials, relatives of murder victims, and former Illinois Governor George Ryan, Romero raised specific concerns about racial and geographic disparities in the imposition of the death penalty. She stated, "At a time when Gov. Davis is proposing that we build a state-of-the-art, $220 million death row, even though we have a $34-billion budget deficit, I think it is an appropriate moment to study (how the death penalty is working in California)." (Los Angeles Times, April 23, 2003)

California Gubernatorial Candidate Open to Moratorium

Richard Riordan, a Republican currently campaigning for Governor of California, recently stated that he supports the death penalty but would be open to halting executions in the state if it were shown that they were being unfairly imposed. "Are we applying the death penalty fairly, honestly?" asked Riordan, the former mayor of Los Angeles. "You can't be afraid to look at things like that." (San Jose Mercury News, 1/24/02) California currently has the largest death row population in the nation, with more than 700 inmates.

California District Attorney Refuses to Seek Execution

San Francisco District Attorney Terence Hallinan has promised not to pursue the death penalty and recently refused to seek an execution date for death row inmate Robert Lee Massie, despite the fact that Massie has waived his appeals.

"[T]here's a moratorium on the death penalty in San Francisco during my administration.... I am cognizant of what's happening all over the country, where people are questioning the fairness and appropriateness of the death penalty. I feel LWOP (life without parole) is a better resolution in those cases, so I want to see if I can do anything with [the Massie] case, which happened before I was in office." (San Francisco Chronicle, 1/6/01)


Connecticut Lags Behind in Death Penalty Reforms

The Chair of Connecticut's Judiciary Committee has called for enactment of death penalty reforms to protect against wrongful convictions. Of the six reforms recommended after a 13-month special commission on Connecticut's death penalty, only one has been enacted. Members of the commission noted, "Experiences in other states throughout the country suggest that Connecticut cannot be complacent and 'best practices' should be the watchword." Among the recommendations are video taping of interrogations, a blind and sequential witness ID process to reduce false identifications, pre-trial hearings to evaluate the validity of jail house snitch testimony, improved access to DNA testing, and an "open file" policy for prosecutors in capital cases. Rep. Michael Lawlor, Judiciary Co-chair, said that there have been no executions in Connecticut "because nobody really wants to do it." (New Haven Advocate, January 15, 2004)


Law Enforcement Officials Support Bill to End Juvenile Death Penalty

A bipartisan measure to eliminate the juvenile death penalty in Florida has passed the Senate Criminal Justice Committee and is now on its way to the full Senate for consideration. The measure was introduced by Republican Senator Victor Crist, a death penalty supporter who notes that young people are different because they don't have the same understanding of consequences as an adult. The bill also has support from the state’s top law enforcement officers, Florida Attorney General Charlie Crist and Florida Department of Law Enforcement Commissioner Guy Tunnel. "You need to show some compassion, but you can’t forget the needs of victims. I’m a proponent of capital punishment but I think, generally speaking, this is a good thing," said Tunnel of the bill. Earlier this year, Wyoming and South Dakota eliminated the juvenile death penalty, and the U.S. Supreme Court will decide this fall whether the practice is unconstitutional. The federal government and 19 states prohibit the death penalty for offenders who were under the age of 18 at the time of their crime, and 12 additional states do not have capital punishment. (South Florida Sun-Sentinel, April 14, 2004) See Juveniles: Roper v. Simmons.

Florida Capital Punishment Supporter Urges State to Abandon Juvenile Death Penalty

Florida Senator Victor Crist (R-Tampa), a long-time death penalty supporter, is asking his legislative colleagues to support a bill to bar the juvenile death penalty in Florida. “In my heart and soul I believe it’s the right thing to do. There is a certain essence of juveniles that make them different,” said Crist. Research supports that notion. David Fassler, a Vermont psychiatrist who helped the American Academy of Child and Adolescent Psychiatry draft its policy against capital punishment for juveniles stated, “[L]aws raising the drinking age to 21 or setting the voting age at 18 already recognize that adolescents are different than adults. Now we really have very solid scientific evidence that, even when they do horrible things, they shouldn’t face the same punishment as adults.” Crist believes the bill will succeed in the Senate, which passed a similar measure in 2001. Nationally in 2004, South Dakota and Wyoming have both abandoned the juvenile death penalty, bringing the total number of states that forbid the practice to 31, including the 12 non-death penalty states. The Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. (Orlando Sentinel, March 8, 2004) For editorials from around the country in support of such a measure, see DPIC’s Roper v. Simmons page and Juvenile Death Penalty.

Democratic Candidate in Florida Would Have Waited on Executions

Florida Democratic gubernatorial candidate Bill McBride said that he probably would not have signed death warrants for two Florida death row inmates executed in October, Aileen Wuornos and Rigoberto Sanchez-Velasco, because the Florida Supreme Court had not yet ruled on a case that could have affected the use of the death penalty in the state. "I probably would not have [signed the warrants] at this stage," McBride said. "I would be in no hurry while this confusion is going on." In 2000, McBride called for a moratorium on executions in Florida amid questions of innocent people being sentenced to death. There have been 22 exonerated death row inmates in Florida since the reinstatement of the death penalty, more than in any other state. (Miami Herald, October 9, 2002). McBride lost the election to Governor Jeb Bush.


"No simple way to speed it up" says Former Georgia Attorney General of Death Penalty Process

Michael Bowers, the former Georgia Attorney General, says that delays in death penalty cases are a necessary part of the death penalty process:

It's a frustrating system, but there is no simple way to speed it up. Overwhelmingly, people say it [the death penalty] should exist for certain heinous crimes. At the same time, people are just as adamant that every avenue should be exhausted to make sure there is no chance they are not guilty. The surer you are, the slower you move. . . . It takes forever. Even if a case goes strictly as planned, you're going to have 10 steps in each case, 10 separate legal proceedings. . . . And at each one of those steps you have the potential of a reversal. . . . And you're talking many, many more years. (Atlanta Constitution, 10/27/01)


Illinois Senator Durbin Supports National Moratorium on Executions

A long-time supporter of capital punishment, U.S. Senator Richard Durbin of Illinois, now backs a national moratorium on executions until questions of fairness are resolved. Durbin recently noted, "I think Governor Ryan has set the stage for an honest debate about creating safeguards in the legal process. Because of inequity and injustices involved in the court system, we need to take a serious national look at death penalty reform, and until we can get that debate under way I support a moratorium." (New York Times, January 19, 2003).

Illinois Gubernatorial Candidate Comments on Death Penalty

The Democratic candidate for Illinois governor, Rod Blagojevich, recently met with the Chicago Tribune editorial board. He had the following to say about the death penalty:

I'm a former prosecutor, I support the death penalty in certain cases. The governor was absolutely right on the moratorium. We can reform a lot of the things. Confessions. There's DNA evidence to give us more certainty. But I still think we have a long way to go before we can even think that the system can work. I'm waiting to see the results of the commission the governor appointed. But even so, there's still a fundamental, inherent disadvantage between indigent defendants and those who can afford the best and the brightest lawyers and I don't know that this commission is really going to address that. And I don't know that in the wake of 13 people wrongfully on Death Row that we should be quick to reinstate the death penalty. (Chicago Tribune, 3/1/02)

Candidate for Illinois Governor On Ending the Death Penalty

Illinois gubernatorial candidate Ronald Burris said he would sign legislation to end the death penalty if it was presented to him. Burris, a former Illinois Attorney General, says he supports the death penalty in principle, but added that the release of 13 innocent inmates from Illinois's death row has changed his mind about the death penalty in practice. "I don't think we'll ever see the death penalty executed in Illinois again," said Burris. (St. Louis Post-Dispatch, 2/20/02)


U.S. Congressman Lee H. Hamilton (D - Ind.):

"The death penalty demeans our society and violates a basic tenet of most Americans' religious heritage: Thou shalt not kill. Religious leaders such as the Pope decry the use of the death penalty. Proponents argue that taking a life--even an occasional innocent life--is a necessary cost of social order. I disagree. We should not lower ourselves to the level of the criminals. The death sentence endorses violence, and violence begets violence. We must show every compassion for crime victims, and deal severely with those convicted of egregious crimes, but the state should follow a higher moral standard than criminals." (Cong. Record, 9/10/97)


Former Kansas State Senator Urges Legislators to Enact Moratorium

Former Kansas Republican state senator Tim Emert recently urged members of the Kansas Senate Judiciary Committee to enact a moratorium on imposing the death sentence and executing those who have already been sentenced to die. Noting that capital punishment was his most troubling issue when he was a member of the Kansas legislature, Emert stated, "I came to the conclusion the only vote I could live with was a 'no' vote on the death penalty in Kansas. I could not, in my mind, be pro-life and pro death penalty." Emert's testimony before members of the Judiciary Committee took place during a hearing on proposed legislation that would halt executions in the state for two years so that the death penalty could be reviewed. The review would be conducted by a seven-member commission, and would focus on, among other concerns, the cost of capital punishment in Kansas and how death penalty cases are handled in different parts of the state. (Associated Press, January 22, 2004)

Kansas Governor Urges Re-examination of the Death Penalty

During a news conference on February 17, Kansas Governor Bill Graves noted the importance of making sure innocent people were not convicted and urged governors to take another look at their death penalty systems. "I think it's probably healthy for everyone in this country to re-examine what's happening in their state," said Graves. "No one wants anyone to enter into our judicial system and be wrongly convicted of any crime and suffer any consequences, especially being put to death, if they're not guilty." (Associated Press 2/18/00)


Abolition Bill Proposed by Former Death Penalty Supporter

Kentucky state Rep. Tom Burch (D-Louisville), who in 1974 voted to reinstate the death penalty because he believed it was a deterrent, said he now intends to introduce legislation to abolish capital punishment in Kentucky. "I was just wrong," said Burch of his 1974 vote. "I've seen the death penalty applied unjustly around the country. I've seen it used for political gain by unscrupulous prosecutors. I've seen it used in a discriminatory fashion against minorities." (Cincinnati Enquirer, 12/29/00)


Former US Senator Joseph Tydings Speaks About the Death Penalty

The final Maryland Commission on Capital Punishment hearing was held on September 23 and among those testifying were a former U.S. Senator, a New Jersey Police Chief, and a Chief of the Forensics Division of the Maryland Public Defenders Office. All spoke of how they were not philosophically opposed to the death penalty, but had serious misgivings about its application.

Maryland’s former U.S. Senator Joseph Tydings said that Maryland has to “be willing to spend the money” if it wants to keep the death penalty. He argued that adequate counsel for defendants was needed and testified that one person is freed from death row for every eight executed since 1976. Acknowledging the cost increase it would entail, Tydings explained, “Just the cost of compensating counsel, it will at least double what’s being spent now, if not triple.” Tydings pointed to a study released by the Abell Foundation this year that found Maryland has spent nearly $200 million over the past 30 years on its death penalty system. He said he believed that it would be “fiscally impossible” to provide a fair system.

West Orange, N.J. Police Chief James Abbot had served on a New Jersey death penalty commission and found that states are incapable of carrying out the death penalty quickly, cheaply, and accurately. He said he would not want to put his family through the process of a capital case if he were killed in the line of duty. He further explained that his now 10-year-old daughter would likely be 30 by the time his killer would be executed. “I would rather she moved on and got the help she needed,” Abbot said. In addition to finding that nationally victims’ services were severely lacking and needed funding, he pointed out, “The reality is there is no closure in capital cases, just more attention to the murderer and less to the victim.” When pressed by a commission member about family victims’ wishes, Abbot testified that he knows victims’ relatives who no longer spoke to each other because of the process and that if families knew life without parole was a maximum sentence offered, they could “take some solace in it.”

Patrick Kent, Chief of the Forensics Division of the State Public Defenders Office testified about the limitations of DNA evidence in trying to avoid wrongful convictions.  He stated that even when DNA is available against a defendant in a trial in has not always proved to be a guarantee that someone is guilty. He pointed to cases where human error and misconduct have led to the use of DNA evidence against innocent defendants.

The bi-partisan Commission was formed by Maryland’s legislature and is due to release its findings by December 15, 2008.

(A. Dominguez, “Death penalty commission holds last hearing,” Associated Press, September 23, 2008). See Victims and Costs

Joseph D. Tydings is a former U.S. Senator from Maryland who has both prosecuted and defended death penalty cases. In a recent op-ed in the Baltimore Sun he wrote of his growing concerns about capital punishment generally, and about Maryland's death penalty in particular. His experience with the death penalty led him to the conclusion that "deep and irrefutable flaws are built into our present system of capital punishment. These flaws hold the most risk for those at the margins of society. Given that insufficient protections exist for those facing the death penalty he recommended that "The penalty for conviction in capital cases should be changed to life imprisonment without the possibility of parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice.

Mr. Tydings underscored the relationship between mistakes in capital cases and the quality of representation a defendant receives:

An accused innocent is most likely to be charged in a highly emotional atmosphere after a heinous crime has been committed, when there is tremendous public pressure on prosecutors and police to find and charge a defendant. The targets in many of these situations have no financial or family resources and are forced to rely on state-paid attorneys, who often are inexperienced and unprepared to defend them in this type of case. Defendants with substantial wealth seldom face a risk of execution.

The full article, “No Fatal Mistakes” is below:
"As a lawyer and former U.S. attorney, I have both prosecuted and defended death penalty cases. As a member of the Maryland House of Delegates and as a U.S. senator, I have studied and dealt with this issue for more than 40 years.

While I have never been philosophically opposed to the death penalty, and have supported it in special cases, I now have deep concerns about the failures in our criminal justice system in capital cases.

The Maryland Commission on Capital Punishment - which is holding public hearings in Annapolis and must submit a final report in December - can play a vital role in educating the public and the General Assembly that our present failure to provide competent lawyers for the accused who can't afford one will likely lead to the execution of innocent defendants. The fact that Maryland pays less than any state other than Mississippi for such representation underscores the seriousness of this problem.

The commission needs to address two key issues: First, what is the present risk that Maryland will execute innocent people over the next decade? Second, can and will Maryland ensure that indigent defendants facing the death penalty - generally minorities, frequently mentally impaired - are provided with a competent lawyer and fair trial, as required by the Constitution?

We now know that in recent years, 129 people in the United States who were found guilty of capital offenses in a trial and were facing a sentence of death were later found to be innocent. In some of these cases, witnesses lied; in others, police or prosecutors took constitutionally unlawful shortcuts; in some, the defense lawyer did not put on a defense.

As pro bono counsel, I unsuccessfully litigated a Virginia appeal of a mentally retarded minor who had been convicted and sentenced to death for a crime that I firmly believe he didn't commit, because his court-appointed attorney didn't want to represent him and was basically worthless as his lawyer. After seven years, the Virginia governor ultimately lacked the courage to stay the sentence, and my client was executed.

Maryland is not immune to this type of miscarriage of justice. Kirk Bloodsworth, a resident of our Eastern Shore, was sentenced to death and later found to be innocent. Mr. Bloodsworth is a member of the state study commission today. Too many Marylanders have been prosecuted, convicted and sentenced to life for crimes they did not commit - and in some of those cases, it was only a matter of chance that they were not sentenced to death and executed.

Americans are just beginning to focus on miscarriages of justice in capital offenses and the fact that our nation, in all likelihood, continues to execute innocent people. Former Supreme Court Justice Sandra Day O'Connor - like myself, a supporter of capital punishment - in 2001 stated: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Since she made that comment, several more people have been shown to be innocent after being sentenced to death.

An accused innocent is most likely to be charged in a highly emotional atmosphere after a heinous crime has been committed, when there is tremendous public pressure on prosecutors and police to find and charge a defendant. The targets in many of these situations have no financial or family resources and are forced to rely on state-paid attorneys, who often are inexperienced and unprepared to defend them in this type of case. Defendants with substantial wealth seldom face a risk of execution.

The defense of a person accused in a death penalty case is enormously time-consuming and professionally demanding for a lawyer. When a state fails to provide the funds necessary to retain a competent lawyer, our state justice system is forced to rely on the altruism of a dwindling number of pro bono attorneys willing to endure the economic sacrifice and emotionally draining task of defending a capital case. Without a competent lawyer, the likelihood of a wrongful conviction rises drastically.

Like Ms. O'Connor, I see the deep and irrefutable flaws that are built into our present system of capital punishment. These flaws hold the most risk for those at the margins of society.

I am very skeptical that these flaws can be fairly repaired in today's fiscal climate, where Maryland's state budget is as crunched as any state. A study this year released by the Abell Foundation revealed that the present death penalty system in Maryland has cost the state nearly $200 million over the last 30 years because of "extra" costs of incarceration and prosecution.

Unless we are prepared to invest even more in the future for competent lawyers, I believe that there is a very real risk that Maryland (and other states that still have death penalty statutes) will execute innocent people. The commission has heard testimony from veteran defense attorneys about the inadequacy of the pay the state provides to attorneys in capital cases. Maryland pays the second-lowest rate in the nation for such attorneys - far below what it costs a lawyer to take on such a case.

Today, the system relies on a dwindling number of lawyers who take the cases at a financial sacrifice because they believe in the importance of providing good counsel to capital defendants.

We must honor America's fundamental democratic and constitutional principle that innocent people shall not be executed. The penalty for conviction in capital cases should be changed to life imprisonment without the possibility of parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice."

- - - - -

Joseph D. Tydings is a former U.S. senator from Maryland, a former U.S. attorney and a former member of Maryland's General Assembly. He is now a partner in a law firm. His e-mail is [email protected]. (J. Tydings, "No Fatal Mistakes," Baltimore Sun, August 22, 2008). See Innocence.

Maryland Lt. Governor Urges Closer Look at State's Death Penalty

Maryland Lt. Governor Michael Steele said that he is troubled by a University of Maryland study that revealed racial bias in the state's capital punishment system. Steele said that he will advise Governor Robert Ehrlich to take a closer look at the study's findings through a more thorough review of the research. This second review would enable state leaders to recommend possible legislative reforms to address the fairness problems identified in the original study. Steele said that he will proceed cautiously when advising the Governor about upcoming executions, and he said that he will be an advocate for mercy. Steele noted, "I feel it is important to relay to the governor and respond to the question of: Should we do this? What is to be gained beyond providing satisfaction to someone who wants to see this individual die?" (Washington Post, January 26, 2003). Read the University of Maryland study.

Maryland Governor Imposes Moratorium on Executions

Maryland Governor Parris Glendening announced the nation's first state-wide death penalty moratorium since Illinois halted executions more than two years ago. Glendening said that the moratorium will remain in place until a death penalty study regarding racial bias is completed and the legislature has had an opportunity to review its findings. Maryland Lt. Governor Kathleen Kennedy Townsend, who has declared her candidacy to succeed Glendening, recently announced her support for the moratorium. She noted that it would be "tough to have a report come out and say this wasn't fair knowing that while the report was going on, that people were executed." (Associated Press, May 9, 2002).

Leading Candidate for Maryland Governor Calls for Moratorium

Lt. Governor Kathleen Kennedy Townsend announced that she supports a moratorium on executions in Maryland at least until a study regarding racial bias is completed. "Given the questions that have been raised, it would be tough to have a report come out and say this wasn't fair knowing that while the report was going on, that people were executed," Townsend said in an interview in her State House office. Townsend will urge Governor Glendening to halt the upcoming execution of Wesley Baker. (Washington Post, 5/3/02).


Massachusetts District Attorneys Criticize Governor's Death Penalty Plan

District attorneys from several Massachusetts counties, including Suffolk, Norfolk, Middlesex, Essex and Barnstable, had strong reservations about Governor Mitt Romney's attempt to establish a nearly "foolproof" death penalty system in the state. Some noted that nothing can eliminate the possibility of human error in such cases. The district attorneys said that the state's medical examiner's office and crime labs are currently overwhelmed with work, and that the labs do not have the capacity to add the additional responsibility of carrying out Romney's plan. "Let's fix what's wrong first," said Barnstable District Attorney Michael O'Keefe. "We're significantly behind in the Commonwealth in the delivery of forensic services, relative to other jurisdictions."

The plan was created by an 11-member death penalty commission appointed by Romney, and the commission members note that their recommendations will come with a hefty price-tag. Norfolk County District Attorney William R. Keating estimates that using the standards would cost Massachusetts taxpayers at least $5 million per death penalty case, nearly as much as his entire $6.8 million annual budget that funds approximately 19,000 criminal complaints a year. Suffolk County District Attorney Daniel Conley said the release of four wrongly convicted or indicted Massachusetts inmates since he took his job in 2002 "has simply convinced me that while technology like DNA is critical in determining one’s guilt or innocence, the administration of justice is a human endeavor, and we're all fallible." (Boston Globe, May 4, 2004) See Innocence. Also Read the Commission Report.

Massachusetts Legislators Oppose Reinstatement of Death Penalty, Citing Mistakes

A recent Boston Globe survey revealed that a majority of the Massachusetts legislature would oppose attempts to reinstate the death penalty. In the Senate, which once backed reinstatement, the proposal would now be defeated by a vote of 21-19. An overwhelming majority of House members (93-62) would also oppose the measure. Several legislators, including former prosecutors and a former police officer, told the Globe about their concerns regarding wrongful convictions in murder cases. "I'm kind of a law-and-order guy, but I know the system is flawed," said Michael Costello, a former Essex County prosecutor and current House member. (Boston Globe, November 20, 2002) See also, Innocence.

Presidential Aspirant Voices Opposition to Capital Punishment

U.S. Senator John Kerry (D-Mass.), who is likely to seek the 2004 Democratic nomination for President, recently voiced his opposition to the death penalty during an interview on "Meet the Press." Kerry stated:

I was a prosecutor. I've sent people to jail for the rest of their lives. I'm opposed to the death penalty in the criminal justice system because I think it's applied unfairly, as even Republican governors have determined, and because I'm for a worse punishment. I think it is worse to take somebody and put them in a small cell for the rest of their lives, deprived of their freedom, never to be paroled.

. . .

I don't think it is right to have a criminal justice system that kills innocent people. Over 100 people have been released from death row in America in the last year with DNA evidence and other evidence showing they didn't commit the crime for which they had been [convicted], some of them in jail for 10, 15 years for a crime they didn't commit. (Meet the Press - transcript, December 1, 2002).

Massachusetts State Senator Changes Position, Calls for Moratorium

State Senator Stephen F. Lynch, who has supported the death penalty for the past 5 years in the state Senate, has changed his position on the death penalty and is calling for a moratorium on executions. Lynch said he altered his views largely based on evidence of wrongful convictions presented by the Innocence Project, a group that helps inmates prove their innocence. "Let me put it this way," Lynch said. "I would be reckless to see that evidence before me and not take a step back." (Boston Globe, 8/4/01)


Former Supporter Will Oppose Any Measure to Restore Minnesota Death Penalty

Minnesota Senator Tom Neuville, the leading Republican committee member on the state's Senate Judiciary Committee, says he will oppose Governor Tim Pawlenty's efforts to reinstate death penalty. Neuville's basic opposition is moral: "If we solve violence by becoming violent ourselves, we become diminished." Neuville, a former death penalty supporter whose reexamination of his pro-life beliefs led him to change his mind on the issue, feels that many of his colleagues share his concerns. "Life is a gift from God. It isn't up to us to take it away," Neuville said. "Whether you take an innocent life of a baby, or of a person who has committed a heinous act, it is still an act at our hands, and it makes us a less caring and less sensitive society." Minnesota abolished the death penalty in 1911.(Minneapolis Star Tribune, December 7, 2003)


Missouri Representative Calls for Halt to Executions

Missouri Rep. Bill Deeken (pictured), a Republican death penalty proponent, has introduced legislation that would halt executions in the state until 2011 and would create a capital punishment commission to examine the fairness and accuracy of Missouri's death penalty. Deeken stated that his motivation for the bill came after realizing that the state's death penalty has not been implemented fairly in all cases and it does not adequately prevent wrongful convictions. He noted, "I am not against the death penalty. But what I am for is to make sure that any person that is sentenced to death is the right person. If I was on a jury, and I found out that I had put someone to death that was not guilty, it would bother me for the rest of my life." Deeken's bill would establish a commission consisting of a broad cross-section of death penalty experts throughout the state, legislative leaders, a murder victims' family member, and a family member of an individual on death row. The commission would look at issues regarding the death penalty and report its recommendations and findings to the governor, legislature, and Missouri Supreme Court by 2011. (Columbia Missourian, February 1, 2007).


Montana Representative Ray Peck (D-Havre)

A former death penalty advocate, has changed his views on capital punishment to match is opposition to abortion, stating:

"Human life is human life, whether they kill someone or it's a baby in the womb. I can no longer support the death penalty." (Billings Gazette 3/30/99)


How New Jersey Abolished the Death Penalty

In 1982, as a second term Assemblyman, Raymond Lesniak voted to reinstate the death penalty in New Jersey. In December 2007, New Jersey voted to abolish the death penalty, becoming the first state in 40 years to accomplish this. Senator Lesniak was one of the sponsors and legislative leaders of the abolition bill. He has written a new book: "The Road to Abolition: How New Jersey Abolished the Death Penalty."

In commenting on the book, Senator Lesniak said, "Why do I care so much about the murderers on death row who, except for the innocent ones, committed the most heinous acts of murder imaginable? I don't. I'm not as enlightened as Sister Helen Prejean. But I do care about the damage that holding on to anger, resentment and the need for vengeance does to us as a society and as human beings."

For more information about the book, see The Road to Justice and Peace. Posted May 10, 2008.

NJ Assemblyman Changes Position on Death Penalty - Legislator Also Lost A Family Member

State Assemblyman Nelson T. Albano of Cape May, New Jersey, announced at a forum on the death penalty that he has changed his mind and now opposes capital punishment. Albano said that his change of heart came after reading a book about Kirk Bloodsworth, the 1st death-row inmate in the United States to be exonerated by DNA evidence. The book led him to the insight into that the capital-punishment system is flawed and should be put on hold.

"I think we owe it to the people in our prisons who are innocent to stop executing," he said.

Albano noted that his 19 year-old son was killed in 2001 by a drunken driver who was a 5-time repeat offender. He considers his son's killing an act of murder.

Nevertheless, he said a life sentence was more appropriate than the death penalty. "I know what it feels like to want revenge," he said. “Let the guilty truly suffer and live their lives without freedom."

The state currently has a moratorium on executions while a commission is reviewing all aspects of the death penalty system. (Atlantic City Press, Sept. 19, 2006).

U.S. Senators Call for Moratorium on Executions, Death Penalty Review

In a Baltimore Sun opinion piece, U.S. Senators Russ Feingold (D-WI) and Jon Corzine (D-NJ) called for a national halt to executions while an independent review of the nation's death penalty is conducted. The Senators wrote, "The message is clear: In response to the glaring flaws in the administration of capital punishment, the nation should conduct a thorough, nationwide review of the death penalty. No executions should go forward while an independent, blue-ribbon commission examines the federal and state systems of capital punishment - systems so riddled with errors that for every eight people executed in the modern death penalty era, one person on death row has been found innocent." The Senators are co-sponsors of the National Death Penalty Moratorium Act. (Baltimore Sun, May 16, 2002).


New Mexico Governor Convinced that Innocent People Have Been Executed

Governor Gary Johnson recently said he no longer supports the idea of a two-year cap on the time death-row inmates can appeal their sentences and he would support a public dialogue on the usefulness on the death penalty. Johnson, who introduced the idea of limiting death-row appeals in 1997 as part of a broader package of crime-fighting legislation, said he now believes limiting death-row appeals would probably lead to innocent people being executed. "I am convinced that has been done in the past, and it will happen in the future. I am convinced that in the future New Mexico will make a mistake," said Johnson. (Albuquerque Tribune, 11/6/01)

New Mexico Governor Says Eliminating Capital Punishment May Be "Better Public Policy"

New Mexico Governor Gary Johnson recently sent a letter to the hundreds of people who wrote to him about the upcoming execution of Terry Clark. In the letter, Johnson, who campaigned as a supporter of the death penalty, said his mind was "not closed on the subject" of capital punishment, adding:

I am of the opinion that swift and sure punishment deters crime. Currently, I do not believe that New Mexico's death penalty serves as an effective preventative measure because it is neither swift nor sure. The time period currently allowed for appeals under the process is too long and yet I have come to believe that innocent people might be put to death if these safeguards are not in place. Opponents allude to an array of alarming national statistics, which suggest that the death penalty is discriminatory in its application. Those opposed to the death penalty point out the disparities that exist with regard to individuals receiving the death-penalty sentence. They argue persuasively that these disparities are a result of several factors including prosecutorial discretion as well as racial and economic discrimination. Although I do not intend on declaring a moratorium on executions in New Mexico, eliminating the death penalty in the future may prove to be better public policy given the reality of the sentence today. Accordingly, within these parameters, I am open to a debate on this topic. (Santa Fe New Mexican 10/28/01). Terry Clark is scheduled to be executed on November 6, 2001. It will be the first execution in New Mexico in over 40 years.


Andrew Cuomo Calls for Reexamination of New York's Death Penalty

Andrew Cuomo, who served as U.S. Secretary of Housing and Urban Development from 1997 to 2001, recently urged New York lawmakers to put an end to the death penalty. The state is holding hearings on capital punishment in the wake of a N.Y. Court of Appeals decision finding the statute unconstitutional earlier this year. In his op-ed in The New York Times, Cuomo noted:

The Democrats, who control the Assembly, should make it clear that they will not pass a new death penalty law. This will take courage, but it is vital that they do so: We cannot rely much longer on a progressive Court of Appeals to intercede and prevent executions, as has happened since 1995, when the death penalty was reinstituted in New York. (Mr. Pataki had vowed to reinstate the death penalty in his campaign against my father, Gov. Mario M. Cuomo.) As judges appointed by Governor Cuomo retire over the next few years, Governor Pataki will install more conservative court members. More important, there remains no evidence that the death penalty is a deterrent to crime and plenty of evidence that it is invoked arbitrarily - and often mistakenly. Last year, 267 inmates nationwide had their death sentences overturned or removed, according to the Justice Department. This is the largest number in any year since 1976, when the United States Supreme Court upheld the constitutionality of state death-penalty laws in a group of states.

Other developments since 1995 have also mirrored the growing doubts about capital punishment. In 2000, Gov. George Ryan of Illinois, a Republican who had supported the death penalty, imposed a moratorium on all executions in his state, citing instances in which death-row inmates were found to be innocent. And a report issued in November by the Justice Department reveals that death sentences nationally are now at a 30-year low. At the same time, cases in which DNA evidence has established the innocence of people convicted of capital crimes - along with concerns about racial bias in death-penalty sentencing - have further undercut support for capital punishment around the country. According to a 2004 Gallup Poll, about half of all Americans say that convicted murderers should get the death penalty. But just under half instead support a sentence of life imprisonment without the possibility of parole. Public opinion has been shifting toward this second option, according to the Gallup organization. The poll also showed that 62 % of Americans believe that capital punishment does not act as a deterrent, compared with 51 percent in 1991.

Nor does capital punishment make sense financially. Many studies show that it is more expensive for taxpayers to pursue executions than to sentence criminals to life without parole. Indeed, New York State has spent at least $160 million pursuing the death penalty since 1995.

Unfortunately, the prevailing thinking in Albany is that opposition to the death penalty is "political suicide." I disagree. While the public overall still favors the death penalty, public opinion in New York has been shifting. A poll conducted in 2003 by Quinnipiac University shows that a majority of New York Democrats oppose the death penalty and that a majority of all New Yorkers favor sentences of mandatory life without parole over execution. Such sentences did not exist in the state when the death penalty law was passed in 1995.

Leadership can change public opinion, and this shifting point of view may become even more pronounced if the Assembly Democrats wage an intense debate on the issue, informing people of the facts - and of the shortcomings of the bills awaiting action in the Legislature. While other states are instituting safeguards against police and prosecutorial misconduct and ensuring protection for mentally ill defendants in capital cases, for example, these issues are not addressed in the governor's or Senate's proposals.

For the public, the debate can begin as early as this week. The first of a series of public hearings on the death penalty is to be held in New York City on Wednesday. The Court of Appeals ruling that suspended the state's death penalty has given New Yorkers a window of opportunity, a moment to enact a real reform. It should not be lost. (New York Times, December 12, 2004) (emphasis added). See DPIC's Web page on New York Court of Appeals Ruling. Note: Hearings on the death penalty were held in Manhattan on December 15. Additional hearings will be held in Albany on January 25.

New York Lawmakers Say Death Penalty's Future May Be In Doubt

According to prominent New York lawmakers, there is little chance that legislators will pass a bill this year to fix the state's unconstitutional death penalty. Many experts believe that the state's statute, which N.Y.'s highest court struck down earlier this year, may never be re-enacted. Republican Senator Dale M. Volker noted that when the Court of Appeals struck down the law, New York heard "the death knell of the death penalty, for the time being." Sheldon Silver, the Democratic Speaker of the Assembly and a death penalty proponent, noted that many people "are willing to accept life without parole, which was not an available remedy before 10 years ago." Silver stated, "Many people have questions. I don't think it's something that should be on a fast track." In the coming weeks, New York's Assembly will hold public hearings regarding the state's death penalty laws. (New York Times, November 18, 2004). The hearings are scheduled to take place in New York City on December 15 and in Albany on January 25. See DPIC's Summary of People v. Stephen LaValle (overturning N.Y.'s death penalty).

Many Call For a More Thorough Review of the Death Penalty in NY

New York Assembly Speaker Sheldon Silver, a long time supporter of capital punishment, called for New York's legislature to step back and more thoroughly review the state's death penalty system, which has not resulted in any executions and has cost the state more than $170 million in the last decade. Speaker Silver said that his chamber would not follow the lead of the state Senate, which passed an amendment to fix the state's death penalty law without hearings. "After 10 years of having the death penalty, and very limited ... attempts to use it and enforce it, I think we should look at the whole thing." Silver said. Senator Seymour Lachman, a Democrat from Brooklyn who is not opposed to the death penalty, said: "Why are we rushing? There have been no public hearings, there has been inadequate public review, the [district attorneys] of New York have not been involved, the major religious organizations of the state are opposed to this, and yet we haven't brought them into the process." Marguerite Marsh of Guilderland, NY, whose daughter was murdered in the late 1990s, does not want to see her daughter's killer executed. She said "I hope they take their time and really debate this....I feel more peaceful about it knowing I didn't put him to death." (Albany Times Union, Sept. 15, 2004).

League of Women Voters Cautions Against "Quick Fix" for New York's Death Penalty

The New York League of Women Voters has urged state lawmakers not to attempt a "quick fix" solution to the state's flawed death penalty law. "We now have a unique opportunity to re-examine the use of the death penalty in New York," said Marcia Merrins, president of the League of Women Voters. In June 2004, the New York Court of Appeals declared the state's death penalty unconstitutional. The League of Women's Voter's, which plans to host a series of capital punishment forums throughout New York in the coming months, believes that the ruling offers lawmakers an opportunity to look beyond the immediate concern of the unconstitutional provision and examine other issues that will inevitably emerge despite the passage of patch work legislation. (New York Law Journal, July 15, 2004) See DPIC's Summary of the New York ruling.

NYC Mayor Restates Concerns About Innocence, Opposition to the Death Penalty

New York City Mayor Michael Bloomberg, a Republican, reiterated his opposition to capital punishment. Bloomberg noted, "The death penalty I've always had a problem with, because too many times in the past you've seen innocent people incarcerated and, tragically, every once in a while they've been executed. And until you can show me that the process never would ever convict somebody that later on we find out was innocent of a crime, murder is murder no matter who does it, and I think we as a society can afford to incarcerate people." (New York Times, July 31, 2003).


Ohio Gubernatorial Candidate Would Have Ended Executions

During his campaign to serve as Ohio's governor, Democrat candidate and Tim Hagan stated that he would grant clemency to any inmate nearing his scheduled execution. "I'm going to commute every person who comes before me, because I'm opposed to capital punishment," Hagan said during a joint appearance with his Republican challenger, Governor Bob Taft. "Unlike you (Taft), I don't believe the people in the state of Ohio are any safer executing 5 people." (Lancaster Eagle-Gazette, October 15, 2002). Hagan lost the election to Governor Taft.


Author of Law Establishing Lethal Injection Reflects on Politicization of Death Penalty

Twenty-six years ago, Bill Wiseman drafted the first lethal-injection law in U.S. history, forever changing the way most death penalty states administer executions. He now says that guilt compelled him to draft the legislation after voting to reinstate the death penalty in Oklahoma despite the fact that he had always been an opponent of capital punishment. At the time, Wiseman was a first-term lawmaker in Oklahoma's assembly, and he knew opposing the state's 1976 measure to bring back capital punishment would be political suicide. Wiseman recalls, "I said, 'Oh jeez, I'm going to have to vote for this. I was back and forth on it. You've got to understand, I just loved being in the legislature." He notes, "It was one of those big moments in my life when I had the opportunity to show what kind of character I had and failed miserably." Wiseman is currently an administrator at the University of Central Oklahoma. (Washington Post, December 7, 2003)

Oklahoma Governor Proposes "Moral Certainty" Standard for Death Penalty Cases

Gov. Frank Keating recently suggested that a "moral certainty" standard replace the "beyond a reasonable doubt" standard now needed for a capital conviction. "[I]f you intend to take another person's life ... the only way we who believe in it can ensure that it will survive is that no innocent person be mistakenly put to death," Keating said. "And for us, to raise that bar and require that a capital crime, when you are taking a person's life, be a moral certainty standard, I think is not only appropriate, I think it is essential." Keating said he would seek to have the higher standard written into Oklahoma law. (The Oklahoman, 6/23/01)


Legislator Who Pushed for Faster Executions Now Has Changed His Mind

Pennsylvania State Representative Michael McGeehan, a tough-on-crime lawmaker from Philadelphia, who earlier had pushed for expedited executions, now regrets that stance. He is sponsoring legislation that would compensate those who have been wrongly convicted. McGeehan's bill, which would also immediately expunge a wrongly convicted person's criminal record, was prompted by his outrage at the number of people who have been wrongly convicted and released from prison.

McGeehan points to a number of innocence cases, including that of Ray Krone of Pennsylvania, who was exonerated and freed from death row, as the basis for his concern. He said that he might even support a moratorium on executions in Pennsylvania until there is a requirement for DNA testing in the state.

"It seems like more and more of these cases are coming up, almost on a monthly basis," McGeehan noted. "It's very disturbing that mostly what we do when we find out we convicted someone wrongly is just let them go and say, 'Opps.' Oops isn't good enough. . . . I led the charge to expedite the signing of death warrants. I wish I could turn back the clock," McGeehan said. (Philadelphia Daily News, January 27, 2006).


BACKGROUND ON RECENT COMMUTATION: "Grossly Inadequate" Representation in a System that "Broke Down"

Just two days after Tennessee's first electrocution in nearly 50 years, Governor Phil Bredesen (pictured) commuted the death sentence of Michael Joe Boyd to life in prison without parole. The Governor called the representation Boyd received during his appeals "grossly inadequate," adding that Boyd's claims were never comprehensively reviewed because his appellate attorney - Dan Seward - failed to provide evidence to support Boyd's initial claim that he was poorly represented during his trial. Bredesen observed, "I've always taken the position that I'm not trying to be the 13th juror; I'm trying to be a backstop. The judicial system just kind of broke down." Boyd's current attorney, Robert Hutton, said that Boyd's clemency request to Bredesen was one of the last legal avenues available before his scheduled execution on October 24.

Boyd, now known as Mika'eel Abdullah Abdus-Samad in prison, has been on death row since 1988. He was convicted of shooting William Price in 1986. Boyd claims the shooting was accidental, but he was convicted of felony murder in perpetration of a robbery. The Tennessee Supreme Court upheld Boyd's death sentence in 1998, when the justices dismissed his claim that prosecutors improperly cited the murder itself as an aggravating factor to support their call for the death penalty.

"He is deeply grateful, thankful and deeply remorseful about his actions in his past. He's trying to spend the rest of his life making a positive contribution to society," Hutton said of Boyd. (Associated Press, September 14, 2007).


Texas Lt. Governor Backs Creation of Innocence Commission, Urges Review of the Death Penalty for Accomplices

In a recent meeting with the Fort Worth Star-Telegram Editorial Board, Texas Lt. Governor David Dewhurst urged legislators to re-examine the state law that allows an accomplice to be tried by the same judge and jury as the shooter in murder cases, adding that he agreed with Governor Rick Perry's decision to commute Kenneth Eugene Foster's death sentence to life in prison based on similar concerns. Dewhurst also called on legislators to establish a state innocence commission to study wrongful convictions and possible reforms to the criminal justice system. "We only want the truly guilty to be subject to punishment in Texas. None of us want an innocent person convicted. ... I'd like the Senate to coalesce on a position," Dewhurst said.

Dewhurst stated that he will ask the Texas Senate to conduct an interim study during the Legislature's hiatus to determine the commission's charge. Dewhurst, who considers requests for stays of execution when Gov. Perry is out of the state, did not offer specifics about the scope of review the commission would have, but said he wants to establish the commission to ensure the criminal justice system is working properly. His concerns, in large part, stem from a series of 14 DNA exonerations in Dallas County, which has reversed more convictions because of DNA evidence than any other U.S. county. In addition, just this week in Houston, where concerns about wrongful convictions and the handling of DNA evidence have gained substantial attention in recent years, DNA evidence has prompted the Harris County district attorney's office to ask that a man convicted of sexual assault in 1995 be released from prison.

This year, Texas Senator Rodney Ellis introduced legislation to create an innocence commission, but the bill failed to pass in the House after its approval by the Senate. He welcomed Dewhurst's backing of the measure, but voiced frustration that Gov. Perry, the Texas Supreme Court, and the Texas Court of Criminal Appeals had all failed to establish the commission without legislative approval, a power that each entity holds. Even Texas Supreme Court Chief Justice Wallace Jefferson, who has spoken in favor of the commission in two speeches to the Legislature, has not established a commission independently. "Any opportunity to review the criminal justice system in Texas is certainly well-warranted. (But) if nobody else is willing to step up and show leadership on this issue, I may just do it for them," Ellis noted.

Senator John Whitmire, chairman of the Senate Criminal Justice Committee, said final approval of the commission will require the vocal support of Chief Justice Jefferson, Lt. Gov. Dewhurst, and other leaders. He observed, "It seems like in this building we are talking about a smarter approach to fighting crime. You want to do it right, and it is only as good as it works and as people respect it. There is something to be said about scrubbing decisions and court actions. How do we prevent the next mistake?" (Fort Worth Star-Telegram, October 4, 2007).

Texas Democrats Endorse Moratorium on Executions, End to Juvenile Death Penalty

The Texas Democratic Party has adopted an historic party platform that contains a number of death penalty reform recommendations, including a call for legislators to enact a moratorium on executions, to ban the execution of juvenile offenders and the mentally ill, and to consider adopting a life without paroles sentence in Texas. More than 1,700 attendees at the Democratic Party’s state convention signed a resolution calling for the moratorium, surpassing the 30% signature threshold required to bring a measure before the full voting body. That voting block overwhelmingly supported the recommendations and added the measures to the final party platform. (2004 Texas Democratic Party Playform, June 19, 2004) Read the Texas Democratic Party Platform.

Black Mayors Support Death Penalty Moratorium

During the recent National Conference of Black Mayors in Houston, the organization unanimously voted to support a resolution calling for a nationwide moratorium on the death penalty. The resolution calls for a halt to the federal death penalty and recommends that states follow suit. "Until you can convince me there is no disparity, racially or economically, I am a proponent of life without parole. I believe that is our best bet," said Houston Mayor Lee Brown, a former police chief. (Houston Chronicle, April 26, 2003)

Texas County is First to Call for Death Penalty Moratorium

Travis County recently became the first Texas county to pass a resolution calling for a moratorium on the death penalty and an in-depth study of the state's capital punishment system. The Travis County Commissioners Court passed the resolution as serious concerns about the state's death penalty, including the accuracy of crime lab findings in Houston and Fort Worth, continue to surface. County Judge Sam Biscoe said before the vote that it was "the right thing to do." He later stated that he supports the death penalty if there is no doubt that it is being administered fairly, but he doesn't believe that is happening. Commissioner Margaret Gomez noted, "We seem to take life very lightly...that it's OK to execute great numbers of people, and that bothers me." (Austin American-Statesman, April 30, 2003).

Texas Legislation Challenges Fairness of State's Death Penalty

Last term, Houston Representative Harold V. Dutton Jr. sponsored legislation to impose a moratorium on executions to provide lawmakers with time to address the questions of fairness and innocence that taint the state's capital punishment laws. This year, Dutton has introduced a bill that would abolish Texas's death penalty. In a recent Dallas Morning News commentary, Dutton noted:

I listened to my constituents. In town hall meetings and in one-on-one conversations, my constituents were troubled by Texas' application of the death penalty. "We need to find out what is broken in our system," they would tell me.

. . .

Last session, other legislators also introduced moratorium proposals. At committee hearings, there was overwhelming support for a moratorium and the need for a study commission.

. . .

If we can't answer the first and simplest question correctly, "Is this person guilty?," how can we expect to answer the infinitely more difficult question correctly: "Is the death penalty the only appropriate punishment for this individual?" (Dallas Morning News, January 13, 2003)

Texans Voice Growing Concerns About State's Death Penalty

Concerns about Texas' death penalty have been raised by a number of present and former state officials. Former Bexar County district attorney Sam Millsap, who successfully prosecuted a number of capital cases, noted, "We're talking about some serious, conservative, pro-prosecution people who have some fundamental questions about whether we know what we're doing right now. What we're saying is 'Let's stop the train until we've got a system we're confident works.' "

Millsap's sentiments were echoed by State Senator Mike Moncrief, who said, "I think there's a clear possibility - and a high probability - that we have executed innocent people in this state."

State Representative Elliott Naishtat also questioned the fairness of the state's application of the death penalty and called for a moratorium on executions until the Texas system can be reviewed. Naishtat stated, "Texas' application of the death penalty is riddled with systemic problems. The Legislature should adopt a joint resolution that authorizes a constitutional amendment giving the governor the authority to declare a temporary moratorium on executions in Texas." (Austin American-Statesman, June 2, 2002).

Texas Legislators Urge Governor to Commute Juvenile Death Sentence

Eighteen state legislators asked Texas Governor Rick Perry to commute Napolean Beazley's death sentence, citing the fact that he was only 17 at the time of the crime. "Texas' practice of executing juvenile offenders like Napoleon runs counter to a well-established worldwide norm," the lawmakers wrote. "Every nation with a working government, except the United States, has ratified the United Nations Convention on the Rights of the Child, which bars giving the death sentence to anyone under 18 at the time of the offense." The letter also noted that Smith County state District Judge Cynthia Stevens Kent, who presided over Beazley's trial, had also written to Perry and recommended that he commute Beazley's death sentence because of his age at the time of the crime. (Houston Chronicle, 9/20/01).

Texas Congressman Calls on Gov. Bush to Place Moratorium on Executions

Representative Ciro D. Rodriguez (D-TX) recently urged Gov. George W. Bush to halt "Texas' execution conveyor belt" until the state's capital punishment system could be studied. Rodriguez, a death penalty supporter, stated, "[R]ecent questions about the fairness and accuracy of the death penalty have led to a growing consensus in Texas, and across the nation, that our criminal justice system might be punishing the wrong people." (Congressman Ciro D. Rodriguez, Press Release, 8/29/00).


Vermont Senator Who Sponsored Bill to Reinstate the Death Penalty Changes His Mind

Vermont Senator Vincent Illuzzi, Chair of the Senate Institutions Committee, sponsored legislation to reestablish the death penalty in Vermont in 1987. The bill ultimately failed, but Illuzzi has subsequently reconsidered his position on the death penalty. "[M]istakes made by the criminal justice system in the last several years, [have] caused me to reconsider my position on the death penalty," said Illuzzi at the 1999 Missouri Death Penalty Symposium, "I'm especially concerned about the inability to reverse the execution of an innocent person." (3/11/99)


Virginia Legislators And Victims Speak Against Death Penalty

Two Virginia lawmakers who have had a family member murdered recently spoke in opposition to the death penalty. During a senate committee hearing on a bill to impose a moratorium on executions, Senators Henry L. Marsh III and Janet D. Howell noted that their opposition to the death penalty was based in their experience of losing a loved one to murder.

Howell's father-in-law was murdered in his home eight years ago. She noted, "Up until then, I was in favor of the death penalty. But when my father-in-law was murdered, I discovered that the possibility of a death sentence on someone did not unify my family; it splintered my family. One of the reasons that I had always supported the death penalty was suddenly not there anymore."

Marsh added that his brother was shot eight years ago. Though Marsh momentarily questioned his opposition to the death penalty, he stated that his brother's murder and the events that followed made him even more convinced that there could be innocent people sentenced to death.

The legislation failed to pass out of committee. (Washington Post, January 17, 2006).

Virginia Governor Seeks End to 21-Day Rule, Compliance on Execution of the Mentally Retarded

In his second State of the Commonwealth address delivered before Virginia's legislature on January 8, Gov. Mark Warner called on the state's lawmakers to end Virginia's 21-day rule that bars the introduction of new evidence more than three weeks after sentencing. He also urged the state to pass legislation to implement the Supreme Court's decision in Atkins v. Virginia that bans the execution of the mentally retarded. Warner stated:

Our state continues to cling to the outdated "21-day rule" that can actually prevent evidence of innocence from coming to light. No other state has such a restrictive rule . . . . I believe the rule should be changed.

In June, the Supreme Court ruled that executing persons who are mentally retarded is unconstitutional. Once again, I urge you to send me legislation to comply with the court's decision and prohibit the execution of mentally retarded persons in Virginia. (Washington Post, January 9, 2003).

Virginia State Legislator Voices Support for Moratorium on Executions

In a recent op-ed, Virginia Delegate Vincent F. Callahan Jr., (R-McLean) stated his support for a halt to executions in Virginia:

In the past, I have been a strong advocate of the death penalty. I voted in favor of the resumption of capital punishment in 1977, and I have supported additional provisions expanding the categories of criminal actions for which the death penalty may be imposed.

However, I have now become one of those who believe that we must take another look at the death penalty. . . .

In fact, I'm now proposing a 2-year moratorium on executions.

. . .

I believe it is time for a new dialogue on the death penalty. New scientific evidence, such as DNA testing, has revolutionized all areas of crime detection, criminal prosecution and criminal defense.

. . .

A moratorium on the death penalty will give elected officials and the general public the chance to take a hard look at the evidence to see whether the death penalty is serving its purpose. (The Roanoke Times, 1/31/02) Read the entire op-ed.

Former Virginia Governor Urges Admission of New Evidence

In a recent editorial, L. Douglas Wilder, former Governor of Virginia, stated:

"The General Assembly of Virginia has concluded another year of activity without addressing one of the glaring needs of improvement in the criminal-justice system. That need is to change the law relative to the admission of evidence as it relates to persons who have been sentenced to death under the laws of the Commonwealth.

"Virginia has shown itself to be a leader on any number of occasions. The irony here is that the state that has been in the vanguard of promoting advancements in forensic evidence and the efficacy of DNA still refuses steadfastly to discard the ancient 21-day rule of law excluding evidence discovered after the trial....

"If the 21-day rule was imposed on Governors as well as on the courts, then the inmate whose life I spared would now be dead." (Op-ed, Richmond Times-Dispatch, 5/9/00)


U.S. Senators Call for Moratorium on Executions, Death Penalty Review

In a Baltimore Sun opinion piece, U.S. Senators Russ Feingold (D-WI) and Jon Corzine (D-NJ) called for a national halt to executions while an independent review of the nation's death penalty is conducted. The Senators wrote, "The message is clear: In response to the glaring flaws in the administration of capital punishment, the nation should conduct a thorough, nationwide review of the death penalty. No executions should go forward while an independent, blue-ribbon commission examines the federal and state systems of capital punishment - systems so riddled with errors that for every eight people executed in the modern death penalty era, one person on death row has been found innocent." The Senators are co-sponsors of the National Death Penalty Moratorium Act. (Baltimore Sun, May 16, 2002).

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