EDITORIALS: Death Penalty Moratorium Needed in Texas

The Dallas Morning News renewed its call for a moratorium on executions in Texas because of the numerous errors in the state's death penalty system.  The paper highlighted the cases of Michael Blair and Charles Hood as examples of how the system has broken down.  Blair was exonerated in 2008 after 14 years on death row.  DNA evidence revealed that he had not been the murderer of 7-year-old Ashley Estel in 1993, despite the fact that the jury had taken only 27 minutes to convict him, and that he may have been guilty of other crimes.  Charles Hood remains on Texas' death row, even though the fairness of his trial was completely compromised by the fact that the judge and the prosecutor admitted to having an illicit sexual affair.

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EDITORIAL: Death Penalty Distorts the Criminal Justice Process

A recent editorial in The Journal Star (Lincoln, Nebraska) expressed the paper's shock at how the death penalty distorted a state criminal investigation to the extent that six innocent people were convicted of a murder they did not commit. Defendants were pressured to offer erroneous testimony through the threat of facing the death penalty. “The wrongful convictions show how the death penalty can distort the search for justice,” the editorial stated. “Investigators supplied suspects suggestions on what could have happened. They showed photos of the crime scene. Under pressure, suspects offered the stories authorities wanted.” The pressure that was used against the suspects was the threat of the electric chair. DNA testing later cleared the six men. The actual killer, whose guilt was confirmed by DNA tests, had already died in 1992. Unfortunately, that defendant had been cleared by a blood test conducted by forensic scientist who was later exposed as providing false and misleading evidence. Due to the prevalence of human error in the system, the editorial concluded, "The death penalty should be abolished."

The full editorial may be read below:

Death penalty distorted Beatrice case

"The exoneration of six people who had been convicted for the murder of a Beatrice woman is a shocking example of the justice system going awry.

The wrongful convictions show how the death penalty can distort the search for justice.

The case boggles the mind.

How could the complicated and detailed scenario presented in court testimony turn out to be complete fiction?

One reason is the police interrogation methods used at the time. Investigators supplied suspects suggestions on what could have happened. They showed photos of the crime scene. Under pressure, suspects offered the stories authorities wanted.

And how was that pressure exerted?

By threatening the death penalty.

Four defendants were bullied into confessions when authorities threatened them with the electric chair, according to Attorney General Jon Bruning. Their testimony was used to convict Joseph Edgar White of first-degree murder. The other five pleaded guilty or no contest to lesser charges.

Advances in DNA analysis now show the prosecution’s case was entirely fabricated.

In the first step, the DNA evidence showed no link between the defendants and the crime.

In the second, conclusive step, the DNA evidence proved who had actually committed the crime in 1985.

That turned out to be Bruce Allen Smith, who died of AIDS in 1992 in Oklahoma City.

He had been a suspect early in the case, but authorities turned their attention elsewhere after he was apparently cleared by a blood test done by Oklahoma forensic specialist Joyce Gilchrist.

There’s now reason to suspect the accuracy of that blood test. Gilchrist was fired after allegations of incompetence and untruthfulness. A federal appeals court reversed a death sentence, finding that Gilchrist had provided evidence that she “knew was rendered false and misleading by evidence withheld from the defense.”

The circumstances of the Beatrice case ought to shake the faith of the most hardened defender of the death penalty.

The death penalty was never imposed in the case, but it played a role in sending six people to prison.

An error here, overzealousness there, and before anyone can stop it, the defendants are behind bars, out of sight and out of mind.

For decades, no one questioned the convictions. Then the case unraveled quickly and unequivocally, exposing the imperfection and error that will forever impair any criminal justice system operated by humans.

The next time Nebraska lawmakers once again consider whether to retain the death penalty, they should study this case. The evidence is fresh and convincing. The death penalty should be abolished."

(The Journal Star, "Death Penalty Distorted Beatrice Case," November 13, 2008). See Innocence and Editorial.

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EDITORIAL: Imperfections Abound with Death Penalty

A recent editorial in The Virginian-Pilot points to the problem of arbitrariness in applying the death penalty. The editorial asks, “Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?”

The editorial continues, “Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.”

In place of an arbitrarily applied death penalty, the editorial concludes that life in prison without parole is a satisfactory alternative, and should be the choice Virginia makes.

The complete editorial may be read below:

Imperfections abound with death penalty

The legal decision facing Harvey Bryant - and every other chief prosecutor weighing whether to pursue the death penalty in a murder case - cannot be made in a vacuum when the choice is fraught with moral, political and practical ramifications.

In the 2006 murder at Hilltop Shopping Center, for example, Bryant, Virginia Beach's commonwealth's attorney, had to consider not just whether the crime met the 15 legal criteria for a death case. He also looked at the strength of the case (no eyewitness, but strong circumstantial evidence). He considered the heinousness (the killer had shot his victim in the back as she tried to escape) and the number of victims (one). He listened to the wishes of the victim's family (one wanted death).

Bryant's decision to forgo the death penalty against Christopher Hagans - guaranteeing with Hagans' guilty plea that he spends the rest of his life in prison without possibility of parole - was the right call. He told The Pilot's Duane Bourne that last month's plea agreement brought some finality to Elisabeth Kelly Reilly's family. And it greatly lessens the chance of extensive, costly, time-consuming appeals.

These are gut-wrenching decisions. Bryant acknowledges that. But they're also arbitrary. In another case recently in court - Marcus Garrett, convicted of killing three people at an Oceanfront condominium in 2005 - Bryant sought the death penalty.

That choice was much easier, he said. Three murder victims, not one. Garrett methodically shot five people, two of them mothers. A judge ultimately sentenced Garrett last month to life in prison, but the questions remain:

Is it fair to weigh how many people died? Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?

The shortcomings of this justice system are numerous and obvious. Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.

As Elisabeth Reilly's mother wisely pointed out, killing Hagans can't change what happened, and it wouldn't make it right. Only two things might have helped her feel better: erasing her daughter's agony and that of her family - which no punishment can do - and knowing the state would never give the man a chance to hurt anyone again.

Virginia has that option. Bryant exercised it in accepting Hagans' guilty plea. He's going to prison for the rest of his life. That's enough for Reilly's mother. It should be enough for the rest of us, too.

("Imperfections Abound with the Death Penalty," The Virginian-Pilot, November 7, 2008). See Arbritrariness, Victims, and Editorials.

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NEW VOICES: Former New Jersey Supreme Court Justices Discuss the Failure of the Death Penalty Law

Former members of the New Jersey Supreme Court recently shared their insights on the death penalty at a symposium sponsored by Seton Hall and Fordham law schools, and by the the New York City and New Jersey State Bar associations. Five former members of the Court, including two chief justices, reviewed the 25 years of capital punishment in New Jersey before 2007’s repeal of the death penalty. Their conclusions echoed the opinion of Justice Barry Albin in State v. Wakefield (2007) that, compared to murderers serving 30 years to life in prison, those slated for death seemed to be the product of "random selection." Former Chief Justice Deborah Poritz (pictured) characterized the efforts of the Court as “an extraordinary experiment in trying to understand the death penalty from both a societal and an individual perspective.…” and that proportionality review became “the key to understanding how difficult it was to make the death penalty work in any sensible way.” Through her work on proportionality reviews, studying the reasons behind the choice for death versus imprisonment, she “began to feel…this system is…impossible. We really can find no way to do this that will take the arbitrariness out of the system,” she said.

Former Justice PoritzIn an editorial on the symposium and New Jersey's abolition of the death penalty, the New Jersey Lawyer, wrote:

The court passed every capital conviction through the prism of reflection, seeking to weed out the arbitrariness that justice abhors. When the representatives of the people saw that enforcement of the death penalty could not be reliably reconciled with rationality in its application, they acted, with the governor's assent, to repeal the death penalty. For that dynamic interaction among courts, electorate and elected officials, we express our wonder and respect. And we are proud to hold up "Jersey justice" as a model for the world.

("Editorial: Reflections on the repeal of capital punishment," New Jersey Lawyer, May 19, 2008). See Arbitrariness and New Voices.

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EDITORIALS: "A Death Sentence Voided"

In May 2008, the California Supreme Court threw out the death sentence of convicted murderer Adam Miranda and ordered a new sentencing trial, ruling that Los Angeles County prosecutors failed to disclose key information that likely affected the sentencing of Miranda. A Los Angeles Times editorial highlights the arbitrariness of this case, noting that many defendants without dedicated representation might not have fared so well. This editorial asks about the other inmates on California's death row:

Miranda had an attorney whose firm was willing to donate millions of dollars worth of time to his case. Most of the 669 people on San Quentin's death row aren't nearly as lucky. If they have lawyers at all, they're usually harried, well-meaning professionals who do the best they can with the limited resources the state gives them to pursue their appeals. Earlier this year, one defense lawyer told the California Commission on the Fair Administration of Justice that, in a single death-penalty case, he typically must review 100 boxes of files and explore 40 areas in which things may have gone wrong -- but must tell his clients that "maybe I can only do seven of them" because there isn't enough money to do the rest.

Confronted with the enormous cost of the death penalty in California, its supporters argue that it would be cheaper if the process were sped up. Yet Miranda's case shows how important those seemingly endless appeals can be. . . . California's death penalty costs too much -- in time and money, but mostly in its potential for injustice -- to be sustained.

(Editorial "A Death Sentence Voided" Los Angeles Times, May 7, 2008). See also Costs and Editorials.

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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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NEBRASKA EDITORIAL: Instead of a new means of capital punishment, the Legislature should get rid of it

Days after the Nebraska Supreme Court ruled that the electric chair was unconstitutional, a Lincoln Journal Star editorial urged the state to reconsider the death penalty:  "Instead of rushing to pass a new means of capital punishment, the Legislature should take this opportunity to finally get rid of the death penalty."   Nebraska was the only state to retain the electric chair as its sole means of execution. The paper noted that it was the right time to take a broader look at the death penalty.  "With the advent of more DNA testing, errors in sending people to death row were shown to be far more frequent than most people believed."  Hence, the paper concluded, "the time is ripe to abolish capital punishment in the state.”

The editorial noted that according to a poll by Nebraskans Against the Death Penalty, 51% of Nebraskans favor a repeal of the death penalty if it is replaced with a sentence of life without parole and restitution to the victim’s estate. Last year, a bill that would allow for life in prison or life in prison without the possibility of parole as a sentence for first-degree murder, introduced by Sen. Ernie Chambers, failed by only one vote.

The last execution to take place in Nebraska occurred in 1997.
(“Abolish the death penalty in Nebraska,” Lincoln Journal Star, February 10, 2008). See Editorials.

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EDITORIALS: “Don't expand capital punishment, abolish it”

In a recent editorial, the Concord Monitor advocated against expanding New Hampshire’s death penalty law to include multiple-murder offenses, as some lawmakers have proposed. Instead, they say, “the death penalty should be eliminated, not expanded.” The editorial cites problems in the death penalty process, such as wrongful convictions, high costs, and its arbitrariness, as reasons for abolition.

The Monitor also writes that the death penalty is counterproductive, noting, “It does nothing to deter people from committing murder, but it simultaneously sends the message that, under circumstances other than war or defense of oneself or another, it is permissible to kill another human being.” The paper continues, “Expanding the death penalty to apply to more offenses will not reduce the murder rate. Making killing a cultural taboo so heinous that society doesn't impose it on the worst of criminals, might.”

New Hampshire has not had an execution in almost 70 years.
(“Don't expand capital punishment, abolish it,” Concord Monitor, February 6, 2008). See Editorials.

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EDITORIALS: Key Virginia Paper Shifts Position on Death Penalty

The Richmond Times-Dispatch, a key paper in the Virginia state capital, has long supported the death penalty.  But their recent editorial takes the position that capital punishment "achieves no legitimate goals that cannot be achieved by a life sentence with no possibility of parole."  The paper equates the death penalty with the state "playing God.” The full text of the editorial follows:

Del. Frank Hargrove, one of the General Assembly's Don Quixotes, hopes the umpteenth time will be the charm. He wants to end executions in Virginia, which stands second only to Texas in its zest for capital punishment.

Although there is some slight evidence that capital punishment might deter crime, its overall effect on crime trends is vanishingly small -- and it achieves no legitimate goals that cannot be achieved by a life sentence with no possibility of parole. (Spare us the nonsense about how execution protects fellow inmates and guards from psychopaths. A place like the supermax Pelican Bay prison is the place for them.)

Many arguments against capital punishment are flawed, but that does not make a case for execution. The only affirmative case that can be made on behalf of killing someone instead of locking him away forever is the sentiment that certain heinous fiends deserve to die. Indeed they do; indeed, they deserve much worse than that, and their death is certainly no great loss to the world. But the judicial system does not exist to mete out divine retribution.

Those who believe in limited government also should believe government ought to limit itself to protecting the public -- and ought to refrain from playing God. We long have supported capital punishment. Yet Hargrove sets a challenging example. To put a new spin on an old conservative trope: If it is not necessary to execute, then is it necessary not to execute? The question is growing tougher.
(Editorial, “Death Be Not?,” Richmond Times-Dispatch, January 22, 2008). See Editorials and New Voices.

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Editorials - Lethal Injection

There Is No ‘Humane’ Execution

A recent New York Times editorial commented on the new one-drug lethal injection protocol used in Ohio for the first time on December 8, but concluded that "the execution only reinforced that any form of capital punishment is legally suspect and morally wrong."  The Times agreed with the late Justice Harry Blackmun who called such manipulations “tinker[ing] with the machinery of death.”  The editorial also noted the risks of exeucting the innocent: "It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center."  The editors ended by saying that repealing the death penalty "is the way to eliminate the inevitable problems with executions."

Click here to read full editorial.

(Editorial, "There Is No 'Humane' Execution," New York Times, December 14, 2009).  See also Editorials and Lethal Injection.

Scientific American on the Death Penalty: "Bad Execution"

The July 2007 issue of Scientific American magazine contains both an article discussing the medical implications of lethal injection and an editorial discussing the humaneness of capital punishment generally. The editorial suggests that capital punishment "can never be anything but inhumane," and offers the opinion that it is "wrong" and an "outrage." But it further states that even those who believe the death penalty is acceptable, should agree that it not be carried out cruelly. The editorial calls for a renewal of public discussion of the death penalty in all "its distasteful details." The editorial in full follows:
In revolutionary France in the early 1790s, physician Joseph-Ignace Guillotin proposed that a surefire execution mechanism be used to carry out the death penalty for the state. Historians believe that Guillotin suggested the use of the instantaneous decapitation device that would later bear his name as a humane form of capital punishment. The guillotine was thought to bring quick mortality more reliably than the standard methods of prerevolutionary France"”beheading by sword or ax, which sometimes involved repeated blows, or hanging by a noose, which could take several minutes or even longer.

In the U.S. in the late 1970s, Oklahoma state medical examiner Jay Chapman developed a fail-safe execution method that many states soon adopted as their main form of capital punishment. Lethal injection, in which three poisonous chemicals are administered to the condemned, largely replaced execution by hanging, firing squad, gas chamber and electric chair, each of which had at some point been judged to be inhumane or excessively violent.

Yet this method is far from foolproof. According to reports, unskilled executioners have caused prolonged suffering in the condemned by mishandling the deadly drug jabs"”instances in which they missed veins, used blocked IVs or miscalculated doses, leading to failed anesthesia and chemical burns. Meanwhile ethical prohibitions to the participation of trained medical personnel ("Do no harm...") have mostly kept the amateurs and their ad hoc methods on the job. In recent months, however, news of numerous botched lethal injections has led courts and state governments to place moratoriums on the practice in a third of the 38 U.S. states that have the death penalty.

In the meantime, some researchers have challenged the assumed airtight efficacy of the drug protocols used in most American lethal injections. The authors of two papers published in Lancet and PLoS Medicine in recent years have questioned whether the recommended protocols, even if carried out as prescribed, would produce death without unnecessary or gratuitous pain "the cruel and unusual punishment" forbidden by the Eighth Amend­ment to the U.S. Constitution. Although some critics argue that the studies are flawed, the dearth of research on lethal injection merely highlights our limited knowledge of the procedure.

The generally accepted approach relies on introducing into the sentenced criminal's bloodstream a chemical cocktail consisting of a barbiturate to bring on sedation and suppress respiration, a neuromuscular paralytic to halt breathing and body convulsions, and a potassium electrolyte to stop the heart. The intent of the mixture is to provide toxic redundancy so that each drug alone would bring on death. Dosages remain the same whether the condemned weighs 150 pounds or twice that. Scientists have found that, as a result, there have been instances in which breathing has continued, the heart beat on, or nerves remained undeadened despite the injections.

In veterinary medicine, the federal government and professional associations keep data on animal euthanasia and have developed guidelines and procedures in accord with the research. Obviously, the same cannot be done for human execution techniques. It would help, however, if states released their data on lethal injections: only two have done so, leaving scientists able to analyze only 41 of the 904 lethal injections that have been conducted in the U.S. (at press time). More complete information would surely help society surmount the lingering uncertainties regarding the deadly protocol and its application.
For those of us who already believe capital punishment is wrong, this situation is just one more outrage. But even those who disagree would have to acknowledge that the Constitution holds that the state must not execute people cruelly. Perhaps capital punishment can never be anything but inhumane, but until society is willing to accept that principle, it is obliged to execute as humanely as it can. Certainly some ways of killing are less cruel than others. So what can and must government do to be more humane? Clearly, the time has come for renewed public discussion and consideration of the death penalty, including all its distasteful details.

(Scientific American, July 2007, at p.36 Perspectives; see also D. Biello, "Reasonable Doubt," at p.20).

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