OP-ED: America's Death Penalty "Broken Beyond Repair"

An op-ed by Bob Herbert of the New York Times highlights issues raised by former Supreme Court Justice John Paul Stevens that changed his mind on the death penalty in the U.S. Herbert cites information collected by the Death Penalty Information Center and points to shoddy defense and state misconduct in the deliberate withholding of evidence as prominent abuses in the system. “Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants.”  According to Herbert, “The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.” Read full op-ed below.

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Five Myths About the Death Penalty

David Garland, a professor of law and sociology at New York University, recently addressed some common myths regarding the death penalty in America.  In an op-ed in the Washington Post, Garland provided information challenging the common wisdom about capital punishment:

The United States is a death penalty nation. Garland contends that, in fact, the death penalty is rarely imposed today. It has been abolished in 15 states and in the District of Columbia. Of the 35 states that have the death penalty, one-third rarely impose death sentences, and another one-third impose death sentences but hardly ever carry them out. Eighty percent of executions are carried out in the South, largely in Texas and in Virginia.

The United States is out of step with Europe and the rest of the Western world. Since 1981, when France stopped executing people by the guillotine, Europe has been an abolitionist continent. However, for most of the past 200 years, American states have been actively working towards death penalty reform. Michigan abolished the death penalty for all ordinary crimes in 1846, a century before most European nations did so.

This country has the death penalty because the public supports it. Even though polls show that a majority of respondents say they support the death penalty, it is less clear whether people are well-informed about the issue, have given the matter much thought, or have considered alternatives to capital punishment.

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Justice Stevens as Legal Innovator

Below is an essay for our thirty-day series on John Paul Stevens by James Liebman, the Simon H. Rifkind Professor of Law at Columbia Law School.  Liebman was a clerk for Justice Stevens during the 1978 Term and has since argued several capital and habeas corpus cases before the Supreme Court.

As he prepares to retire from the Supreme Court, Justice Stevens is justly being hailed for his intellect, independence, leadership, and grace. I would add another encomium: innovative legal problem solver. I don’t mean someone who looks to the law to solve social problems. I mean a judge who looks to the law to solve its own problems – someone who believes deeply in the law’s integrity but instead of assuming the law is perfect, assumes it has a capacity for self-correction.

The meaning of the Eighth Amendment as applied to the death penalty is an example of a legal problem Justice Stevens has led the Court in trying to solve. The Eighth Amendment is problematic, of course, because it obliges judges to invalidate “cruel and unusual punishments” while providing so little evidence of its meaning that it tempts judges to enforce their own, not the law’s, values. Nor are there easy fixes, such as Justice Scalia’s idea that the provision only bans punishments not authorized by statute – as if “cruel and unusual” meant “cruel and illegal” and didn’t bear at all on whether, for example, Congress or a state legislature could prescribe death as a punishment for illegal immigration.

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The Angolite: A Prison Magazine's Inside View on Choosing Execution

A recent issue of the award-winning prison news magazine, The Angolite, featured a story by inmate Lane Nelson about Gerald Bordelon, the first person to be executed in Louisiana since 2002. Bordelon expedited his own execution by choosing to waive his appeals, including his direct appeal, which was previously thought to be a mandatory part of the state's death penalty process. Bordelon volunteered for execution after he was found guilty of raping and murdering his 12-year-old stepdaughter. The choice to waive his appeals was met with strong disagreement from his team of inmate counsels (volunteer prisoners who act as attorney substitutes), who decided they would not assist him in his choice.  Bordelon was represented in his desire to be executed by a noted constitutional attorney from Baton Rouge, Jill Craft.  She succeeded in having the court allow Bordelon to waive his appeals, but later said she would never do it again. Bordelon told The Angolite why he volunteered for his execution: "I'm doing this for [the victim] Courtney.  I'm doing it for her family.  I'm doing it for me.  I'm doing it for my family so they don't have to worry and deal with it for the next 20 or 30 years.  I'm doing it for a lot of reasons."

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NEW VOICES: "Death penalty hurts – not helps – families of murder victims"

Kathleen Garcia, a victims' advocate and expert on traumatic grief, recently shared her opinions on the death penalty in New Hampshire, a state that is studying the issue through its Commission on Capital Punishment.  Garcia, a member of New Jersey's Death Penalty Study Commission, wrote, "Make no mistake – I am a conservative, a victims’ advocate and a death penalty supporter. But my real life experience has taught me that as long as the death penalty is on the books in any form, it will continue to harm survivors. For that reason alone, it must be ended." Garcia suffered through the murder of a family member in 1984, but has found the death penalty to be much more harmul than helpful: "It is my opinion, as well as the view of other long-standing victim advocates throughout New Jersey, that our capital punishment system harmed the survivors of murder victims. It may have been put in place to serve us, but in fact it was a colossal failure for the many families I serve."

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RESOURCES: DPIC's 2009 Article Index Now Available

The Death Penalty Information Center collects relevant death penalty articles that have appeared in print and on media Web sites. Our annual compilation is a representative sample of the extensive media coverage given to capital punishment for a particular year and is not inclusive of all such articles. For those interested in examining the titles and sources for this coverage, we have prepared an index of the articles from 2009 in Excel format. The index is arranged chronologically and may be sorted or searched after downloading. Each article’s entry gives its author, title, source, and date. It does not include, however, the full text of the articles listed. Click here to download the index.

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OP-EDS: "Kansas pretends its capital punishment system is working"

Mike Hendricks, columnist for the Kansas City Star, recently described how the state goes through the motions of having a death penalty, but with no immediate prospect of its use after 16 years.  Kansas reinstated the death penalty in 1994; eight years ago, the Lansing Correctional Facility held an open house for the media, showcasing its new death chamber. The room was then sealed and has remained untouched. Ten prisoners await execution, one of whom has been on death row for thirteen years.  “No one that I’m aware of is even close,” said Kansas Department of Corrections spokesman Bill Miskell.  Hendricks wrote: "Wouldn't sentencing the worst killers to life without chance of parole be a whole lot cheaper, simpler and - given the cold-blooded nature of state executions - more morally acceptable?"  A bill to abolish the death penalty is currently before the legislature.  Read full text below.

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NEW VOICES: Past President of Prestigious American Law Institute Says Death Penalty "Unworkable"

Michael Traynor, President Emeritus of the prestigious American Law Institute (ALI), called the ALI’s recent withdrawal of its model death penalty law “a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country.” He noted that the ALI had carefully reviewed the death penalty process, and that "Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed."  The ALI, with membership of more than 4,000 lawyers, judges and law professors, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. Its model penal code became the prototype for death penalty laws across the United States after the old state laws were struck down by the Supreme Court in 1972. Last fall, Traynor noted, the ALI withdrew its support for the model death penalty law, effectively concluding that “we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.”

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