NEW VOICES: One Year Later, New Jersey Prosecutors Find No Problem with Abolition of Death Penalty

In December 2007, New Jersey became the first state to legislatively abolish the death penalty in 40 years.  In commenting on the absence of capital punishment for one year, a number of state prosecutors found no problems with the new system.  "We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that reviewed the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."


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Maryland Commission Recommends Abolition of Death Penalty in Final Report

The legislative commission established to examine the death penalty in Maryland has recommended abolition of the punishment by a vote of 13-9.  The Maryland Commission on Capital Punishment released its final report on December 12, detailing the reasons for its recommendation.  "There is no good and sufficient reason to have the death penalty," Chairman Benjamin R. Civiletti said at a news conference. Regarding the commission's recommendation of repeal rather than reform, he said, "There are so many faults, so many flaws within the system that we could not imagine ... ways in which to cure it."

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Tennessee Death Penalty Committee Recommends Changes in Representation Standards

A legislative committee created to study the death penalty in Tennessee has recommended ways to ensure capital cases are handled fairly and effectively.  The committee approved a resolution that asks lawmakers to create a statewide authority whose duties would include identifying lawyers experienced in capital cases, raising the standard pay for such attorneys, and monitoring their caseloads.

Thomas Lee, a Tennessee attorney on the committee, said such an authority would help ensure that "trials are done right the first time."  The committee, created last year after the state legislature decided Tennessee’s death penalty system needed to be examined for fairness and accuracy, will present its findings to the Governor and lawmakers.

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NEW VOICES: Law Enforcement Officer Changed Views Because of Death Penalty's Risks

Michael May served as a Baltimore City police officer and as a military police officer. He formerly supported  capital punishment, but changed his stance upon learning of innocent people who had been sentenced to death.  Mr. May testified earlier this yar before the Maryland Commission on Capital Punishment.  He recently published an op-ed in the Baltimore Examiner explaining how his views changed and why he supports for repeal of Maryland’s death penalty.  The full op-ed appears below:

Time to end the death penalty in Maryland
By Michael May

I spent 10 years as a law enforcement officer, including seven in the Baltimore Police Department. So I am no stranger to violence.

Indeed, my years surrounded by senseless crime filled me with outrage and the desire for revenge — including the death penalty.

But I have learned a lot since then, including the scary fact that a single mistake could be mean the execution of an innocent person.

As someone who has dedicated my life to enforcing the law, I can't live with that. I testified before the Maryland Commission on Capital Punishment this fall, sharing my journey from death penalty supporter to a supporter of repeal.  And last month the Commission validated my experience by voting for the same - the repeal of Maryland's death penalty. It was a smart decision and I hope the legislature will move quickly to enact it.

As I said, my opposition to the death penalty evolved.  During my years in Vietnam and later as a military policeman in Louisiana, I was exposed to violence as a matter of routine.  My anger at those who would harm innocent people boiled over. Then, working in some of the poorest and crime-ridden neighborhoods of Baltimore only strengthened my feeling that some people were simply beyond redemption.  It was a fairly simple conclusion for me to think that the most evil people in our society deserved the death penalty. In my view, those who opposed it were muddleheaded, knee-jerk liberals who were just plain wrong.

I felt that way until about ten years ago.  The last decade has seen a broad shift in public opinion on the death penalty, and I was not immune to the new information that was coming out about innocent people being sentenced to death. I was also struck by a talk on the death penalty by then Archbishop of Baltimore, William Cardinal Keeler, when he spoke at a mass at my parish in Towson. I realized then that I had to learn more.

I read about Kirk Noble Bloodsworth — a man sentenced to die in Maryland for a crime he did not commit.  I could not begin to imagine the absolute horror of languishing on death row an innocent man.  I could not imagine the anticipation of being lifted onto a gurney, strapped down and injected with a combination of lethal drugs by an incompetent nurse's aide — knowing all the time that I had done nothing wrong.

As I read about Mr. Bloodsworth and other innocent people that came close to execution, my doubts about the death penalty grew. Human beings are simply not right 100 percent of the time.  No amount of reforms, technological advances, or legal procedures can undo that fact.  If the death penalty remains, some state, perhaps even our state, will kill an innocent person.  Can we live with that?

Like many people, I have struggled to make sense of this issue. The death penalty seems like a proportionate punishment for a grievous crime.  At least it brings justice to victims in the face of evil.  But does it?  My religion teaches that the path to true peace is through forgiveness.  John Paul II traveled to an Italian prison to forgive the man who shot him. The death penalty keeps us from following that noble example.  It certainly does not bring back or even honor the dead.  It also does not ennoble the living. It does nothing to assuage the sorrow of the victim's loved ones. In fact, as I sat through the commission hearings waiting to testify, I heard from victims' families who said the opposite — that the death penalty's uncertainty only brought them more grief.

The closer you look at it, the less the death penalty makes any sense.  As the Maryland commission found, the risk of executing an innocent person is just too high to justify maintaining a punishment that does not deter, costs too much, and harms victims' families.

And as a former police officer, I would add that the death penalty is not needed to protect the public. It is time for Maryland to make the common-sense choice and replace the death penalty with life without parole.

Michael May, of Rodgers Forge, is an attorney and formerly served as a Baltimore City police officer and a military police officer.

(M. May, “Time to end the death penalty in Maryland,” The Baltimore Examiner, December 1, 2008).  See New Voices and Recent Legislative Activity.

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Former Death Row Inmates Seek Changes in Texas

Two dozen exonerated ex-death row prisoners from across the country will hold a news conference on October 31 in Austin to call for the establishment of a statewide commission on wrongful convictions and a moratorium on executions in Texas. The 24 men spent a combined total of nearly 200 years on death row before being freed. They will be joined by State Rep. Elliot Naishtat and former Bexar County District Attorney Sam Millsap (pictured).

Texas has executed 417 people since the reinstatement of the death penalty, accounting for 37 percent of all executions nationwide, including 12 so far this year. An additional 16 executions are scheduled in Texas this fall and winter. Nine death row inmates have been exonerated in Texas since 1973, including Michael Blair whose charges were dismissed this year.

(Witness to Innocence Press Release, Oct. 27, 2008). See Innocence and Recent Legislation.

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U.S. Supreme Court Denies Rehearing in Kennedy v. Louisiana Opinion

On October 1, the U.S. Supreme Court denied Louisiana's request for a rehearing of the Court's ruling striking down the death penalty for non-homicidal offenses against individuals. Louisiana contended that a recent adjustment to military law that continued to allow the death penalty for child rape should have been taken into account by the Court, resulting in a different opinion. The Court slightly modified both the majority and dissenting opinions to include reference to the military code. The Court issued a statement, leaving intact its decision not only reversing Patrick Kennedy's death sentence for child rape, but also holding that the death penalty would be disproportionate for any crime against an individual in which the victim is not killed.  The statement said, in part:

[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty.

. . .

That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional.

On June 25, the U.S. Supreme Court struck down as unconstitutional the Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die. The Court held that all such laws, where the crime against an individual involved no murder or intent to murder, were not in keeping with the national consensus restricting the death penalty to the worst offenses. As a result, the only two people sentenced to death for this crime in the modern capital punishment era no longer face execution. Both were sentenced under the Louisiana statute that was found unconstitutional. Today, no one is on death row for any offense not involving murder.

The Court noted that the defendant, Patrick Kennedy, had been sentenced to death under a law that was not embraced by 44 out of the 50 states. The Court pointed to the danger in laws such as Louisiana's, which allowed the death penalty where no murder was committed: "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

Victims' groups and child advocates had concluded that the death penalty for child rape could actually harm children, rather than protect them. Some of the reasons they cited included a possible decrease in reporting, re-victimization through the lengthy appeals or re-trials, and that equating rape to muder sends the wrong message to child victims.

(Kennedy v. Lousiana, 07-343 U.S. (2008); Order modifying the opinion and dissent, Oct. 1, 2008). See Supreme Court and DPIC's Kennedy v. Lousiana page.

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NEW RESOURCES: "Lessons from New York's Recent Experience with Capital Punishment"

Prof. James Acker has published an article in the latest edition of the Vermont Law Review entitled, “Be Careful What You Ask For: Lessons from New York’s Recent Experience with Capital Punishment.” The article explores the various standards by which the death penalty was evaluated during the last decade in New York. The public debate first addressed the question of, “Is it right?” with a focus on retribution, morality and religion. The second set of questions addressed was, “Is it useful? Is it cost-effective? Is it necessary?” with a focus on costs and alternatives such as life in prison without parole. The final question discussed was, “Is it fair?”

Acker is a Distinguished Teaching Professor of the School of Criminal Justice at the State University at Albany. He explores the issues that New York faced first in reinstating the death penalty and then in abandoning it, issues such as innocence, race discrimination, arbitrariness, quality of representation, and the makeup of the capital jury. Based on his extensive review of the legislative debate and public hearings, Acker concluded, “Between 1995, when their state enacted a death penalty statute after not having one for more than a generation, and 2004, when the New York Court of Appeals invalidated the law on state constitutional grounds, New Yorkers invested millions of dollars and an incalculable amount of time and effort in an enterprise that vexed many and ultimately benefited no one.”
(J. Acker, "Be Careful What You Ask For: Lessons from New York’s Recent Experience with Capital Punishment," 32 Vermont Law Review 683 (2008)). See Law Reviews.

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Criminal Justice Integrity Unit created by Texas High Court to Address Growing Concerns

A new Texas Criminal Justice Integrity Unit has been formed by the Texas Court of Criminal Appeals to address concerns in the justice system and to work with inmates who may have been wrongfully convicted.  The state's highest court for criminal matters will study issues such as eyewitness identification, crime lab reliability, police interrogations, and standards for preserving evidence.  Since 2001, 33 men have been exonerated in Texas, including one man from death row.  Texas leads the country in executions.  Court of Criminal Appeals Judge Barbara Hervey stated that the unit is not a forum for a particular group or political party, instead it's a “call to action to address the growing concerns with our criminal justice system.” She added, “It’s time to act and move for reform.”

The new unit will work with the Innocence Project, the governor's office, and all parties affected by the criminal justice system, including inmates who may be innocent. Sen. Rodney Ellis of Houston, a long-time supporter of criminal justice reform, will be one of the initial members of the unit.
(J. Vertuno, “Texas high court creates integrity unit”, San Antonio Express-News, June 4, 2008).  See New Voices and Recent Legislation.

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Maryland Creates Commission to Study Death Penalty

Maryland Governor O’Malley signed legislation creating a commission to study the death penalty on May 13. The Maryland Commission on Capital Punishment is mandated to reflect on all sides of the issue and its members will include representatives from law enforcement, a prosecutor, a public defender, and family members of murder victims. The commission begins its work in July and should submit its findings by December 15, 2008.

The following representatives will serve on the commission:

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EDITORIALS: Proposed Law Would Harm Younger Victims

The governor of Missouri, Matt Blunt, has proposed that his state expand the death penalty to include cases of sexual assault against children where the victim is not killed.  However, according to an editorial in the Springfield News-Leader, such a law would not protect children.  Instead, it could make it less likely that these offenses would be reported, would put the child in danger of even worse crimes, and would involve the child and the family in years of death penalty litigation.  The editorial cites the opinions of a leading child advocate and a prosecutor in urging caution about such a law.  In addition to the significant policy considerations, the U.S. Supreme Court is currently considering whether such a law would be constitutional.

The  editorial follows:
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To better protect children, Gov. Matt Blunt says we need a new law allowing child rapists to be executed.

In making his pitch, Blunt continually uses the words "protecting our children."

Unfortunately, no matter how well meaning he might be, the governor's proposed broadening of the application of the death penalty may make it more difficult to protect children.

Legislators have been jumping on the bandwagon, saying they will support a Senate bill sponsored by Jack Goodman, R- Mount Vernon, that calls for anyone convicted of forcible rape or forcible sodomy of a child under 12 to be put to death.

That's somewhat predictable. What sane politician in this state wants to be seen as pro-deviant?

Still, if you listen to those who work most closely on child rape cases, you will learn they have concerns about the proposed law.

Creating a death penalty for child sexual offenders, could, in their view:

- Cause a decrease in calls reporting attacks on children, because those making the reports will fear it could lead to death for the suspect;

- Frighten child victims out of coming forward knowing their accounts could lead to an execution, especially when a case involves a family member;

- Tighten rules of evidence in child rape cases, because flexibility and forgiveness have been built into laws regarding testimony from children;

- Create more scrutiny of convictions, with minor errors taking on more gravity and perhaps triggering new trials and appeals;

- Cause much more time to be expended by prosecutors and, often, publicly funded defense attorneys;

- Force children to spend many more years dealing with a case, because capital cases produce many more appeals;

- Heighten the chance that an offender will kill a victim to avoid being identified.

That latter concern came to mind for Barbara Brown, executive director of the Child Advocacy Center, as she dealt with the case involving the 7-year-old allegedly attacked by Jeffrey Dickson.

He's a 36-year-old Springfield man charged with child kidnapping, forcible rape and two counts of forcible sodomy. Prosecutors say he took the 7-year-old from a Springfield home earlier this month to another home in the city where he drugged her, choked and sexually attacked her, leaving her for dead in a house he set ablaze.

Brown, who has worked with child victims for almost a decade, worries a person who is capable of that kind of vicious attack might not hesitate to inflict fatal injuries if the possible penalty is death anyway.

"It takes away the incentive to leave a child alive," she said.

Greene County Prosecutor Darrell Moore cited some of the concerns listed above as he offered his opinions on the proposed law. He added he cannot understand why the move has been made to try to broaden Missouri's use of capital punishment at a time when questions of the constitutionality of a similar law are pending before the U.S. Supreme Court in a Louisiana case.

Should the court rule unfavorably toward expansion of the penalty in that case, work by Missouri's lawmakers will be moot.

If the legislature is doing more than just posturing with its talk of a death penalty for child rapists, lawmakers must first engage in serious, analytical discussion with those most directly affected: child advocates, prosecutors and police.

Viewed in simple terms, the question of being for or against punishment for those who would terrorize, hurt and seek callous pleasure from children is easy.

But this is far from a simple issue.

Those who deal with it judicially know that. Those who deal with it legislatively ought to know it, too.

(Editorial, "Execution of child rapists will not protect our children," Springfield (Missouri) News-Leader, April 28, 2008).  See Kennedy v. Louisiana and Recent Legislation.

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