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Some murder victims' kin reject capital punishment; others endorse the sanction Richmond Times-Dispatch

Some murder victims' kin reject capital punishment; others endorse the sanction

BY Frank Green, Times-Dispatch Staff Writer
Monday, December 22, 2003

CHESAPEAKE - Thursday evening, for the second time in a month, Robert Meyers faced the media and thanked another jury for convicting the killer of his brother.

Meyers, who was not answering questions, did not say whether he hopes Lee Boyd Malvo receives the death penalty. After the recommendation of a death sentence for Malvo's partner, John Allen Muhammad, Meyers said that although he took no joy in it, he thought execution is an appropriate punishment.

Larry Meyers Jr., a nephew of Dean H. Meyers, who was slain on Oct. 9, 2002, conceded after the Muhammad death sentence recommendation that his family struggles with capital punishment just like the rest of the country.

The Meyerses are not alone. That Malvo was a juvenile when he shot Dean Meyers to death is a further complication.

Just ask Martha Cotera of Austin, Texas, whose 25-year-old son, Juan, and his 20-year-old friend, Brandon Shaw, were locked in the trunk of a car by armed, 17-year-old carjackers who drove the car into a river, where the young men drowned. "It  was vicious," Cotera said of the July 1, 1997, crime that took the life of her only son.

She and her husband, also named Juan, were devastated by the loss, but each asked the district attorney not to seek the death penalty in a state that leads the country in executions. She said the Shaws agreed with the final decision not to seek execution.

"We don't think that taking a life solves the problem," she said. "We don't think that life is replaceable. We don't condone killing by anybody or the state, for any reason. . . . We think there are other ways of addressing the juvenile-justice problem."

Her son's killers pleaded guilty, and each received back-to-back 40-year sentences.

Tom Mauser's son, Daniel, was a 15-year-old sophomore when he was among the murdered at Columbine High School in Littleton, Colo., in 1999.

There was a time, Mauser said, when he believed execution was the appropriate punishment, even for a juvenile killer such as Malvo, given the seriousness of his crimes. But his views changed after Daniel's slaying.

He said he attended some meetings of the Parents of Murdered Children and was shocked by the anger and anguish felt by some of the parents who were waiting for killers to be executed. "I came to realize that there really isn't closure regardless of whether your loved one's murderer is dead or alive; there is no closure," Mauser said.

"I found much more pain for those people" who had to attend trials and suffer through years of appeals. Because his son's killers are dead, some say, " 'Well, it's easy for you, for you to say - you haven't had to live through that murderer being alive,'" he said.

"I fully realize that. It's easy for me to say. But, again, I base it on some of the people I come across," Mauser said.

Bill Pelke, whose 78-year-old grandmother was murdered in 1985 by teenage girls in Indiana, also changed his mind about the death penalty. Reached by phone in Alaska, where he now lives, he said that well-meaning people, who thought they were extending sympathy, would tell him when referring to one of the defendants: " 'I hope the bitch burns.'"

One of the girls, Paula Cooper, who was 15 at the time of the crime, was sentenced to death. Pelke initially felt the death penalty was correct. But it hit him one day that his grandmother, who taught Bible lessons to neighborhood children, would not have wanted Cooper executed. He said he prayed for the strength to forgive.

He then fought the death sentence and worked to get it commuted to a 60-year prison term. Pelke also is a co-founder of Journey of Hope . . . From Violence to Healing, an organization led by murder victims' families that conducts speaking tours and addresses alternatives to the death penalty.

Mauser, Cotera and Pelke are among 10 cases of surviving family members of capital-murder victims, in cases where the killers were juveniles, featured in a recent report titled "I don't want another kid to die."

The report was written by Murder Victims' Families for Reconciliation, an anti-capital-punishment group. It states: "This report is a statement against state killing of juveniles, made by those who know violent loss most intimately and have been most directly affected by juvenile crime."

Renny Cushing, the group's executive director, said that "legislators, opinion-shapers, and members of the general public need to know that victims do not all speak with one voice on this important public-policy issue."

A Montgomery County, Md., victim-witness worker said during the Muhammad trial that while many of the surviving family members of the sniper victims wanted the death sentence, "I think a lot of them would be all right with a life sentence, as long as [Muhammad] was never free again."

Josephine Crutcher of Austin, Texas, sister of sniper-shooting victim Claudine Parker of Alabama, said after the Muhammad death-sentence recommendation that she does not "really believe in the death penalty."

But, she said, if anyone deserved it, it was Muhammad.

Although some who had believed in the death penalty changed their views after the murder of a loved one, the opposite can happen, too.

On Thursday, Malvo was convicted of the capital murder of Linda Franklin near Falls Church on Oct. 14, 2002. The jury must now decide whether to recommend to the judge if Malvo should be executed or spend the rest of his life in prison.

Franklin's father, Charles Moore, appearing on NBC's "Today" show Friday, said he had not supported capital punishment in the past, but Malvo "needs to die. . . . He needs to know he's dying for a reason," according to The Associated Press.

Rush Wickes, a representative of the Arlington County-based Virginians United Against Crime, a victims-advocacy group, said that watching an unrepentant Muhammad and seeing Malvo draw cartoons as graphic photographs of his victims were shown may have been the final straw that switched Moore's perspective.

Wickes said that "our organization believes that individuals are aware at the age of 16 and 17 that murder is wrong. If they are old enough to legally drive a car, they are old enough to understand the wrongfulness and consequences of committing capital murder."

"However, it remains up to the trial jury to decide upon the maturity and culpability of the offender and sentence them as they see fit. No two teenage murder convictions are alike, only a few will result in a death sentence, but we believe that option should indeed remain available for those who committed the 'worst of the worst' crimes," Wickes said.

Wickes contends that both Muhammad's and Malvo's cases appropriately qualify for the death penalty. "Their actions resulted in the malicious murders of random citizens, which not only wrecked the lives of their survivors but also terrorized the community at large," he said.

Survivors of victims in this case have mostly come out in support of the death penalty, Wickes said. "I'd suspect that some family members of victims in this case may have previously opposed the death penalty in principle or didn't feel strongly either way.

"However, after seeing the evidence of the broad swath of destruction left by these two individuals against good, ordinary people, these survivors may have concluded that such evil can only be dealt with through the ultimate penalty," he said.
 

Contact Frank Green at (804) 649-6340 or [email protected]
 


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Gray Rules Guillory May Ask for Mercy American Press.com

May 9, 2003
Friday
By VINCENT LUPO

The mother of a 6-year-old Iowa boy murdered 11 years ago will be allowed to ask jurors for mercy for the man who allegedly molested and killed her child, Judge Al Gray ruled Thursday.

Citing a 1998 state constitutional amendment approved by voters, Gray said Lorilei Guillory will be allowed "to testify and ask for mercy if she wishes" during any penalty phase of Ricky Langley's first-degree murder re-trial, if a penalty phase is needed.

Prosecutors objected and appealed. Gray refused to delay the trial for that appeal. Thus testimony in the trial will resume at 9 a.m. today, May 9.

Gray's ruling came after jurors heard from several prosecution witnesses and viewed two video tapes - one which included police recovering the body of Jeremy Guillory from Langley's closet and another in which Langley matter-of-factly confesses to the slaying.

Earlier in the week prosecutors asked Gray to prohibit the victim's mother from asking jurors to spare Langley's life if the panel in fact convicts him of first-degree murder.

Assistant District Attorneys Wayne Frey, Cynthia Killingsworth and Sharon Darville Wilson filed a document Tuesday objecting to the testimony of Lorilei Guillory as a defense witness. They claim her testimony would violate a higher court ruling that bars victims' family members from expressing mercy for a defendant.

Gray was obviously taken aback by the law cited by the state. "I never thought of it (victim's mercy testimony) being prohibited," the judge, who openly opposes capital punishment, said. "It is inconceivable to me that it would not be allowed."

Gray said there are so many victim's rights laws on the books in which victims or their family members can seek their own form of justice and explain the effects of the loss of the victim. He seemed puzzled that the law wouldn't allow the victim to seek mercy if that is what is desired.

"If I can get it (the mother's testimony) in, I will," he told the lawyers.

During Thursday's morning session, the judge told prosecutors that the law they had cited was superseded by a 1998 victim's rights amendment overwhelmingly passed by Louisiana voters.

That amendment allows victims or their families to testify about what sentence they feel is appropriate for a defendant.

He asked both the state and defense attorneys to further research the matter and also asked Walt Sanchez, Ms. Guillory's attorney, to file documents formally presenting her side of the case.

The papers filed later by Sanchez said Ms. Guillory wants to take advantage of her right to speak out, but is willing to "acquiesce" if testifying would jeopardize the trial in any way.

"(Her) most fervent wish ... is that this matter be finally and swiftly resolved. She intends nothing said or done by her during the course of these proceedings to be the precipitating factor in a mistrial," Sanchez said.

Though she is willing to limit her testimony, Sanchez said, she does not agree with the state that her testimony must be restricted. There are no restrictions, Sanchez said, on the defendant's calling a member of the victim's family in mitigation.

Although it is "unduly prejudicial" for a family member of the victim to give inflammatory testimony before jurors, there is nothing to limit the victim's family from requesting mercy for a defendant, Sanchez argued.

Ms. Guillory asks to be heard, Sanchez said, but will do so within the confines of the law.

Gray noted that Ms. Guillory had complained earlier during the trial that prosecutors were not treating her fairly. Although the state had paid to return her to Louisiana from South Carolina and is paying her hotel expenses, the district attorney's office had not given her a daily expense allowance. Sanchez intervened and got Gray to order defense counsel to pay her $1,000 for living expenses since defense attorneys, as well as the state, had subpoenaed her for the trial.

She is also to be paid $25 per day per diem and reasonable expenses of any after-school day care for her younger son.

The expenses are to be re-imbursed to the defense attorneys as court costs in the case. Since Langley is indigent and his attorneys were appointed by the court, those costs will likely never be paid.

When Gray asked Frey about the 1998 amendment to which he had referred earlier in the day, the prosecutor said the amendment applies to victims in non-capital cases in which judges, not juries impose the sentence. He said the amendment allows the victim's family to recommend a specific sentence, something they had not been allowed to do before.

But, Frey said, victim's family members cannot request a penalty in a capital case because the jury, not a judge, is deciding the sentence.

Gray disagreed. He said the state was placing "this woman in a bind" by requesting that she not testify and making her feel it is her fault if the case is thrown out because she does.

She is in an "uncompromising position," the judge said. "All she wants to do is express her beliefs, and those are her beliefs and she is entitled to them," Gray said.

"She just happens to have a different view than the state," he told Frey. "You can bet if she said she wanted the death penalty, the state would be all over it" and Frey would allow her to testify.

In June of 2002 Ms. Guillory made a tearful plea to Gray, asking him to allow Langley to plead guilty to first-degree murder with a life sentence. She told him she did not believe in the death penalty which she called "legalized murder."

But Gray told her the law did not allow him to accept such a plea unless prosecutors agreed to back off on seeking a death sentence. District Attorney Rick Bryant later filed a strongly worded refusal.

 

  • Back to Victims' page

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    Legal Issues: Victim Impact Evidence

    Some forms of victim-impact evidence may be presented during the penalty phase of a death-penalty trial, usually limited to testimony by victim’s family members describing how the crime has affected their lives. It is unconstitutional for the prosecution to present evidence or argument that the victim’s family members want the defendant to be sentenced to death.

    In Booth v. Maryland (1987), the U.S. Supreme Court ruled by a vote of 5-4 that victim-impact evidence and argument violated the Eighth Amendment. At that time, the Court said such testimony created an unacceptable risk that a death sentence would be arbitrarily imposed based upon the emotionally-charged opinions of the victims, rather than a reasoned moral judgment based upon the circumstances of the crime and the characteristics of the defendant. The Court reaffirmed its holding in Booth in the case of South Carolina v. Gathers (1989). However, with the retirement of two of the justices in the Booth majority, the Court reversed itself in Payne v. Tennessee (1991) and permitted the prosecution to present victim-impact evidence to counter mitigation from the defendant. Backtracking from its reasoning in Booth, the new Court majority held that “assessment of the harm caused by the defendant has long been an important factor in determining the appropriate punishment, and victim impact evidence is simply another method of informing the sentencing authority about such harm.”

    While states vary in precisely the type of statements they allow and which individuals may be permitted to provide them, the U.S. Supreme Court has unambiguously reaffirmed that Booth’s prohibition against victim-impact statements that explicitly ask a jury to impose a death sentence still stands. In a unanimous decision in Bosse v. Oklahoma (2016), the Court made clear that it has never overruled the portion of Booth that prohibited the presentation of testimony from victims' families offering "opinions about the crime, the defendant, and the appropriate punishment," and declared that this part of Booth "remain[s] binding precedent until we see fit to reconsider [it]."

    See also D. Sanderford, "Victim Impact Evidence, State by State" (2012).

    R. Paternoster J. Deise, "A HEAVY THUMB ON THE SCALE: THE EFFECT OF VICTIM IMPACT EVIDENCE ON CAPITAL DECISION MAKING," 49 Criminology 129 (2011).

    Return to Victims and the Death Penalty.


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    Victim Resources

    Studies and Reports
    Books
    Law Reviews
    Articles
    Multimedia
    Related Web Sites

    Studies and Reports

    Corey Burton and Richard Tewksbury, "How Families of Murder Victims Feel Following the Execution of Their Loved One’s Murderer: A Content Analysis of Newspaper Reports of Executions from 2006-2011," Journal of Qualitative Criminal Justice and Criminology, Vol. 1, Number 1 (2013)

    Marilyn Peterson Armour & Mark S. Umbreit, "Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison," 96 Marquette Law Review 1 (2012).

    Murder Victims’ Families for Human Rights released a report entitled “Creating More Victims: How Executions Hurt the Families Left Behind" (2006). Families of the executed are victims, too, according to the new report, which draws upon the stories of three dozen family members of inmates executed in the United States and demonstrates that their experiences and traumatic symptoms resemble those of many others who have suffered a violent loss. “I don’t think people understand what executions do to the families of the person being executed,” says Billie Jean Mayberry, one of the family members featured in the report. Mayberry’s brother, Robert Coe, was executed in Tennessee in 2000. “To us, our brother was murdered right in front of our eyes. It changed all of our lives.” “Creating More Victims” includes recommendations for mental health professionals, educators, and child welfare advocates. MVFHR also plans to deliver the report to the United Nations High Commissioner on Human Rights and request that that office undertake further study of the impact of executions on surviving families. For a copy of the report, contact Susannah Sheffer, 617-512-2010, [email protected]. For more information about MVFHR, visit www.mvfhr.org.

    "Dignity Denied: The Experience of Murder Victims' Family Members Who Oppose the Death Penalty" (2002). This report released by Murder Victims' Families for Reconciliation provides an account of the experiences of murder victims' family members who oppose capital punishment and steps that can be taken to protect these individuals from discrimination based on this opposition. "Dignity Denied" challenges lawmakers, the federal government's Office of Victims of Crime, and leaders within the victims' services community to address past and current discrimination and commit to equitable treatment of survivors of homicide victims. Specifically, the report offers model legislation and recommends that victims' rights laws be amended to ban unequal treatment based upon a victim's position on the death penalty. It also states that victims' services should be administered independently, not as part of the prosecutor's office, and that leaders in the victims' services community should develop protocols for serving victims' families who oppose the death penalty. 

    Books

    Jeanne Bishop has written a new book about her life and spiritual journey after her sister was murdered in Illinois in 1990. Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer tells Bishop's personal story of grief, loss, and of her eventual efforts to confront and reconcile with her sister's killer. She also addresses larger issues of capital punishment, life sentences for juvenile offenders, and restorative justice. Former Illinois Governor George Ryan said of the book, "When I commuted the death sentences of everyone on Illinois's death row, I expressed the hope that we could open our hearts and provide something for victims' families other than the hope of revenge. I quoted Abraham Lincoln: 'I have always found that mercy bears richer fruits than strict justice.' Jeanne Bishop's compelling book tells the story of how devotion to her faith took her face-to-face with her sister's killer .... She reminds us of a core truth: that our criminal justice system cannot be just without mercy." (J. Bishop, "Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer," Westminster John Knox Press, 2015; DPIC posted Feb. 19, 2015).

    A new book by Professor Jody Lynee' Madeira of the Indiana University School of Law follows the aftermath of the Oklahoma City bombing to explore whether the families of murder victims obtain closure from an execution. In Killing McVeigh: The Death Penalty and the Myth of Closure, Prof. Madeira recounts her wide range of interviews with those who experienced this tragedy first-hand. Regarding the book, Professor Carol Steiker of Harvard said, “Everyone seems to have an opinion about whether the execution of murders can offer ‘closure’ to the victims’ loved ones. Finally, we have a study that has investigated the largest, most media-saturated mass murder and execution in recent times….Madeira’s in-depth, fair-minded, and sensitive account opens a window for us into the struggles of those affected and explores the complicated role that our public institutions of criminal justice play in the complex and difficult work of reconstructing life after atrocity.” (J. Madeira, "Killing McVeigh: The Death Penalty and the Myth of Closure," New York University Press (May 2012); DPIC posted May 23, 2012).

    The Crying Tree is a new novel by Naseem Rakha that raises the real-life question: Could you forgive the man who murdered your son?  Rakha is an award-winning broadcast journalist whose work has been heard on NPR's "All Things Considered" and "Morning Edition." The story of her novel is told through the lives of a mother whose son was murdered and the superintendent of a state penitentiary where the defendant's execution is to take place.  Sister Helen Prejean, author of Dead Man Walking, said in review, "For anyone who has ever wondered how forgiveness is possible, even when the pain is overwhelming, wonder no more.  The Crying Tree takes you on a journey you won't soon forget." (N. Rakha, "The Crying Tree," Broadway Books, 2009).

    The Ride: A Shocking Murder and a Bereaved Father’s Journey from Rage to Redemption is a new book by Brian MacQuarrie that explores a parent's grief and subsequent transformation through the story of Robert Curley in Massachusetts.  Curley's 10-year-old son, Jeffrey, was a victim of abduction and murder in 1997.  The murder shocked and outraged the community of East Cambridge outside of Boston.  MacQuarrie explores the father's evolution “from grief to anger to activism against predators,” and from being an outraged father demanding the death penalty for his son’s murderer to an outspoken critic of capital punishment.  Delving deeper into the issue, the author looks at the struggle of Massachusetts residents as they decide whether to reinstate capital punishment.  Senator John Kerry calls the book, a “compelling and deeply moving…story of Bob Curley’s journey to hell and back.”  Sister Helen Prejean said "Robert Curley's radical transformation is a lesson for us all." The book may be purchased here and at major bookstores. MacQuarrie has been a reporter at the Boston Globe for 20 years.  (B. MacQuarrie, “The Ride: A Shocking Murder and a Bereaved Father’s Journey from Rage to Redemption,” Da Capo Press, 2009).

    What To Do When the Police Leave by Bill Jenkins is filled with simple, frank and useful advice vital to families suffering a traumatic loss. This book is a victim's voice speaking to victims offering help in the face of helplessness. The author shares expert advice, lists helpful resources demystifies legal and medical jaron, and affirms hope in the midst of tragedy. Bill Jenkins is a professor of Speech and Drama at Virginia Union University. Since the tragic shooting of his son he has become active in various victim support and rights efforts.

     

    In "Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty," author Rachel King presents the stories of 10 Murder Victims' Families for Reconciliation members. Throughout the book, King examines the reasons why these survivors choose reconciliation over retribution and why they actively oppose capital punishment. Using first-hand accounts and third-person narrative, King presents the stories in the context of the nation's on-going death penalty debate. King is legislative counsel for the American Civil Liberties Union. (Rutgers Press, 2003).  For more information, visit Rutgers Press.

      Capital Consequences: Families of the Condemned Tell Their Stories is a new book by Rachel King of the ACLU's Capital Punishment Project. The book focuses on the impact that the death penalty has on the families of those who have been condemned to die. King, who also wrote Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty, describes these individuals as the unseen victims of capital punishment and highlights the experience of having loved ones on death row using personal accounts and a moving narrative voice. King notes that because their pain tends to attract less attention and empathy than the hurt of crime victims' families, many family members of the condemned suffer alone. Though the book uses the stories of the condemned to depict the flaws in the judicial system, its clearest message is that tragic events have tragic consequences that reach far beyond their immediate victims. (Rutgers University Press, 2005).

     

    Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty" - Written in the spirit of "Dead Man Walking," this book by Antoinette Bosco conveys both the powerful personal experience of a mother whose son was murdered and a wealth of information about the criminal justice system in America. (Orbis Books, 2001) For more information, or to read an excerpt, visit www.maryknoll.org/MALL/ORBIS/more_mercy.htm

     

     

    Journey of Hope - Bill Pelke tells of the life-altering transformation that occurred after his 78-year-old grandmother was murdered by four teen-aged girls in his book, Journey of Hope...From Violence to Healing.

    Though at first he supported the death penalty for 15-year-old Paula Cooper, one of the young girls who had murdered his grandmother in her home for $10 and an old car, he later opposed her execution and successfully fought to have Cooper's death sentence overturned. The book follows his personal journey over many years and features a forward by Sister Helen Prejean. (Xlibris Corporation, September 2003).

    "Hidden Victims," a new book by sociologist Susan F. Sharp of the University of Oklahoma, examines the impact of capital punishment on the families of those facing execution. Through a series of in-depth interviews with families of the accused, Sharp illustrates from a sociological standpoint how family members and friends of those on death row are, in effect, indirect victims of the initial crime. The book emphasizes their responses to sentencing, as well as how they grieve and face an impending execution. Sharp also examines the issues of wrongful conviction and the change in family structure after a loved one has been sent to death row. The book contains a foreword by death penalty expert Michael Radelet. (Rutgers University Press, 2005).

    Murdering Myths: The Story Behind the Death Penalty, a book by Judith W. Kay, uses the personal experiences of both crime victims' families and those on death row to examine America's beliefs about crime and punishment. Noting that researchers have raised questions about the execution of innocent people, racial bias in sentencing, and capital punishment's failure to act as a deterrent, Kay asks why Americans still support the death penalty. She uses interviews with those most closely impacted by violent crime and capital punishment to examine whether punishment corrects bad behavior, suffering pays for wrong deeds, and if the victims' desire for revenge is natural and inevitable. Kay is an associate professor of religion at the University of Puget Sound. ("Murdering Myths: The Story Behind the Death Penalty," Rowman & Littlefield Publishers, Inc., June 2005).

    Wounds That Do Not Bind: Victim-based Perspectives on the Death Penalty, a book by James R. Acker and David Reed Karp, examines how family members and advocates for victims address the impact of capital punishment. The book presents the personal stories of victims' family members and their interactions with the criminal justice system. It also examines the relevant areas of legal research, including the use of victim impact evidence in capital trials, how capital punishment affects victims' family members, and what is known about addressing the needs of the survivors after a murder. (Carolina Academic Press, 2006).

    Law Reviews

    Symposium: Pamela Blume Leonard, Michael Mears, John H. Blume, Stephen P. Garvey, Samuel R. Gross, Richard Burr, et al.: "Victims and the Death Penalty: Inside and Outside the Courtroom," 88 Cornell Law Review 257 (2003). This is a series of articles in the Cornell Law Review stemming from a symposium focusing on the role that victims play in capital cases. The journal provides a close legal examination of victim impact statements and related research, expert analysis of state statutes, and an analysis of what role these statements should play in capital trials.

    Vivian Berger, "Payne and suffering - a personal reflection and a victim-centered critique," 20 Florida State University Law Review 21 (1992).

    See also Studies, top.


    Articles

    Juanita Perez (Guest Columnist), Mom of murdered son finds 'only pain' from death penalty, Florida Today, July 1, 2017: This column is written by a woman whose son, her son's girlfriend, and their 5-year-old daughter were murdered over 11 years ago; she explains why she does not believe the death penalty is "just" explaining: "Politicians champion the death penalty while they campaign and are in office, and then they retire and move on, never having to deal with the reality of it. Meanwhile, families like mine are the ones forced to suffer the consequences of their political decisions, as we remain stuck in a painful and prolonged legal process."   

    Statement of Rep. Renny Cushing, a member of New Hampshire's Death Penalty Study Commission, Dec. 1, 2010, upon release of the Commission's report.

    Carolyn Leming and Vicki Schieber "Why Two Mothers Back Death Penalty Repeal" The Gazette, Feb. 16, 2007: This article talks about the tension between protecting the innocent on the one hand and dragging the process out for victims' families on the other, and how those two can't be reconciled.

    Vincent Lupo, "Gray Rules Guillory May Ask For Mercy," American Press.com, May 9, 2003. - This article focuses on Lorilei Guillory, the mother of a 6-year-old Iowa boy murdered 11 years ago. Guillory wantsto be allowed to ask jurors for mercy for the man who allegedly molested and killed her child. Judge Al Gray said he will allow Guillory "to testify and ask for mercy if she wishes" during any penalty phase, but prosecutors are appealing the decision ot the Louisiana Supreme Court. Murder Victims' Families for Reconciliation filed an amicus curiae brief in the Louisiana Supreme Court in support of Lorilei Guillory's effort to testify in the penalty phase of the trial of the man who murdered her 6 year old son Jeremy and to express her opposition to the execution of her son's murderer. Read the brief.


    Multimedia

    NPR: STORYCORPS: Recording America "Father Finds Peace in Forgiveness" - Hector Black's daughter was murdered after she surprised an intruder in her Atlanta home. In this powerful recording, Black discusses how he found peace in forgiving the man who murdered his child.

    Related Web Sites

    National Center for Victims of Crime - support hotline to speak with victim advocates, receive referrals to support services.

    National Organization for Victim Assistance - promotes victim rights and services through national advocacy, direct services to victims and assistance to professional collegues.

    Office for Victims of Crime - oversees diverse programs that benefit victims of crime.

    Post Traumatic Stress Disorder (PTSD) Alliance - provides educational resources to those at risk of developing PTSD.

    Murder Victims' Families for Reconciliation - a national organization comprised of family members of murder victims and family members of those who have been executed. Advocates alternatives to the death penalty, crime prevention programs and supports programs to address the needs of victims of violence.

    Murder Victims' Families for Human Rights - is an organization with a national and international focus actively working to abolish the death penalty. MVFHR members are murder victims' family members and family members of the executed who are opposed to killing in all cases whether it be homicide, state killing, or extrajudicial killings and "disappearances."

    Journey of Hope...from Violence to Healing - is an organization led by murder victim family members joined by death row family members, family members of the executed, the exonerated, and others with stories to tell, that conducts public education speaking tours and addresses alternatives to the death penalty.

    California Crime Victims for Alternatives to the Death Penalty - is a coalition of families, friends, and loved ones of murder victims who oppose the death penalty. The coalition supports families, friends, and loved ones in telling their stories and being heard.

    Victim Offender Mediation Association - provides resources, training, and technical assistance in victim-offender mediation, conferencing, circles, and related restorative justice practices.

    Campaign for Equity-Restorative Justice

    Illinois Victims - support for victims of crime in Illinois

    New York Victim Voices - Family & Friends of Homicide Victims come together to share experiences, knowledge and peaceful strategies to foster a safer, stronger community.

    Families of Homicide Victims and Missing Persons, Inc. (FOHVAMP) - is a nonprofit organization working in Colorado to find, support and empower families suffering from a loved one's murder or long-time disappearance.

    Lamp of Hope Project - project started by Texas death row inmates aiming to educate the public about alternatives to the death penalty, and support the families of victims and of prisoners.

    Restitution Incorporated - a nonprofit organization dedicated to promoting healing between offenders and victims by helping offenders make restitution for their crimes.


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    Victims and the Death Penalty

    INTRODUCTION

    Vindication for victims and closure for victims' families are often held out as primary reasons for supporting the death penalty.  However, many people in this community believe that another killing would not bring closure and that the death penalty is a disservice to victims.

    Legal Issues: Victim Impact Evidence

    Victims' Resources

    Studies and Reports
    Books
    Law Reviews
    Articles
    Related Web Sites

    News and Developments - Current Year

    News and Developments - Previous Years (Includes the Voices of Victims):

    2018 2017 2016 2015 2014 2013 2012 2011  2010  2009  2008   2007  2006  2005  2004  2003

    ORGANIZATIONS FOR VICTIMS' FAMILIES, WITH RESOURCES ON THE DEATH PENALTY:

     Murder Victims' Families for Human Rights

    Goals:

    To support and aid those who are mired in the court system without voices.

    To be a national and international advocate against the death penalty as punishment for crime.

    To educate legislators and the general public about the victimizing and re-victimizing effects of the death penalty on everyone involved in the process.

     

     

    Murder Victims' Families for Reconciliation

    Goals:

    Recruits, trains, prepares and mobilizes victims to get involved in jurisdictional campaigns.

    Develops strategy with other state-focused death penalty abolition groups.

    Testifies before legislatures and empowers other family members to testify.

    Forms alliances with other victims' groups.

    Works with policymakers, prosecutors, defense attorneys, law enforcement, media and victims advocates to support alternatives to the death penalty and increases awareness of the needs and voices of victims' family members.

     


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    Sentencing for Life: Americans Embrace Alternatives to the Death Penalty by Richard C. Dieter, Esq.
    Executive Director, Death Penalty Information Center
    April 1993

    TABLE OF CONTENTS
    Introduction
    Public Opinion and the Death Penalty
    Recurrent Problems Erode Death Penalty Support
    Results from State Polls
    The Trend Toward Longer Incarceration
    Effectiveness of Alternative Sentencing
    The Effects of a Life Sentence
    Restitution
    Other Alternatives
    Families of Murder Victims
    The Politics of Death
    Conclusion

    "Everybody believes that a person sentenced to life for murder will be walking the streets in seven years."

    --the late Judge Charles Weltner, Georgia Supreme Court [1]

    "Some of the jurors were wanting to know would he get out in like seven years on good behavior .... If we were gonna' put him in prison, we wanted to make sure he would stay there. But ... we didn't really feel like he would .... we really felt like we didn't have any alternative."

     

    --Juror in an interview following a death verdict against Randall Rogers[2]

    "[T]here is an effective alternative to burning the life out of human beings in the name of public safety. That alternative is just as permanent, at least as great a deterrent and--for those who are so inclined--far less expensive than the exhaustive legal appeals required in capital cases. That alternative is life imprisonment without the possibility of parole."

     

    --Mario Cuomo, Governor of New York [3]

    INTRODUCTION

    Contrary to the conventional wisdom that Americans wholeheartedly support the death penalty, the latest national opinion poll released in conjunction with this report shows that more people in this country would prefer alternative sentences that guarantee both protection and punishment over the death penalty. Death penalty support becomes a minority opinion when the public is presented with a variety of alternative sentences. Most Americans, however, are unaware that the length of imprisonment embodied in these alternatives is now the norm almost everywhere in the country.

    "The failure of executions to achieve more than a spectacle has raised the question: Could America live without the death penalty? Are there alternatives to deal with the type of criminals who are currently sentenced to death? Would the American people be satisfied with those alternatives?"

    Since its reinstatement in 1976, the death penalty has brought little but frustration to both proponents and opponents alike. The evidence of racism, of innocent defendants, of costs and delay continue to plague this country's recent experiment with the punishment of death. The failure of executions to achieve more than a spectacle has raised the question: Could America live without the death penalty? Are there alternatives to deal with the type of criminals who are currently sentenced to death? Would the American people be satisfied with those alternatives?

    This report releases the results of a new national poll which demonstrates that Americans are willing to give up the death penalty if certain stringent sanctions are enforced. This poll, and similar state opinion polls, confirm that abstract support for the death penalty drops significantly when respondents are given a choice between capital punishment and sentences which assure lengthy incarceration and compensation for the family of the victim. Only 41% of the population would choose the death penalty over a sentence of life without parole coupled with restitution to the victim's family.

    One of society's best kept secrets is that the length of sentences which people would support over the death penalty are already in place and functioning in most of the United States. Forty-five states (plus the District of Columbia) presently employ a life sentence in which there is no possibility of parole for at least 25 years. Thirty-three of those jurisdictions use a life sentence in which parole is never possible. Yet parole information is often withheld from jurors in capital cases and the use of these severe sentences is unknown to most of the public. As one recent study concerning the public's knowledge about the death penalty concluded, "[A] majority of Americans have taken a very strong position on an issue about which they are substantially uninformed." [4]

    In many states, the stringent restrictions on release of those convicted of murder are a new phenomenon. But in those places where they have been the law for some time, they are working as promised. In California, for example, no prisoner sentenced to life without parole has been released in 25 years.[5]

    From all indications, America could be safer without the death penalty and would realize an enormous monetary saving as well. Judging by the crime rates in those states that have abolished capital punishment and instituted alternative sentences, the absence of the death penalty would cause no rise in the murder rate. [6] Capital murderers would not be released after serving only seven years. Hundreds of millions of dollars and thousands of hours of court time would be saved by replacing the death penalty with alternative sentences. The money saved could be devoted to crime prevention measures which really do reduce crime and violence and thus are the true alternatives to the death penalty.

    PUBLIC OPINION AND THE DEATH PENALTY

    In 1966, more Americans opposed the death penalty than favored it.[7] Executions were halted in 1967 and did not resume for 10 years when support for the death penalty had grown. Today, a new phenomenon is emerging from the polls. Support for the death penalty drops precisely to the same low percentage as in 1966 when people are given the choice of stringent alternative sentences.

    "Today, a new phenomenon is emerging from the polls. Support for the death penalty drops precisely to the same low percentage as in 1966 when people are given the choice of stringent alternative sentences."

    In March of this year, the polling firms of Greenberg/Lake and the Tarrance Group conducted a national survey of people's opinions about the death penalty. This poll revealed an increasing trend, first detected in a series of state polls on this issue, that Americans would favor certain alternative sentences over the death penalty. Although a majority of those interviewed said they favored capital punishment abstractly, that support is reversed when the sentence of life without parole, coupled with a requirement of restitution, is offered as an alternative. Forty-four percent favor that alternative, while only 41% selected the death penalty. Even the choice of a sentence which guaranteed restitution and no release for at least 25 years caused death penalty support to drop by 33%.

    These results indicate a strong desire on the part of the public for protection from those who have committed society's worst crimes. There is also a preference for connecting punishment with restitution to those who have been hurt by crime. Support for the death penalty drops below 50% with a range of alternative sentences, especially those including restitution. Compared to the 77% who favor the death penalty in the abstract, support drops by 21% when a sentence of life with no parole for 25 years is considered; if a requirement of restitution is added to that sentence, support drops by 33%. And the sentence of life without parole plus restitution causes a support drop of 36% and relegates capital punishment to a minority position. (See Fig. 2).

    RECURRENT PROBLEMS
    ERODE DEATH PENALTY SUPPORT

    Why is it that people who appear to support the death penalty are willing to abandon that support in favor of alternative sentences? The answer may lie in the fact that people who support the death penalty nevertheless retain serious doubts about it which are triggered by some of capital punishment's recurrent problems. Also, people are unaware of the sweeping changes that have occurred in the actual amount of time which convicted murderers will have to serve for their crimes.

    Doubts About the Death Penalty

    Most people express doubts about the death penalty when presented with some of the problems which have plagued this ultimate punishment for years. Forty-eight percent responded that the issue of racism in the application of capital punishment raised some or serious doubts about the death penalty.

    The perception of racial injustice within the criminal justice system, symbolized by the image of Rodney King in Los Angeles, is reinforced by the fact that Blacks are represented on death row three and half times their proportion in the population as a whole. And defendants who kill a white person in America are many times more likely to get the death penalty than those who kill a black person. [8] It is not surprising that almost three-fourths of Blacks believe that a black person is more likely than a white person to receive the death penalty for the same crime. [9] As these facts about capital punishment become more widely known, the enthusiasm for the death penalty may continue to wane.

    Americans also expressed doubts about the death penalty after hearing information about the costs of the death penalty and the absence of any unique deterrent effect. The strongest doubts, however, were raised by the prospect that innocent people could be executed. Fifty-eight percent of those polled said the question of innocence raised doubts in them about the death penalty. (See Fig. 3.)

    All of these issues are likely to cause further erosion in the public's support for the death penalty as new information buttresses people's concerns. Studies of the cost of the death penalty, for example, repeatedly show that it is much more expensive than the alternative of life in prison.[10] Reports on the death penalty's deterrent effect consistently conclude that it is no more a deterrent than lengthy prison terms. [11] With all forms of government experiencing a need for streamlining expensive programs, the death penalty is ripe for a cost and benefit review. [12]

    Other recent studies have confirmed that many who have been convicted of capital crimes, and even some who have been executed, were innocent.[13] In their recent book, In Spite of Innocence, the authors discuss over 400 cases in which the defendant was wrongly convicted of a crime punishable by death. At least 23 cases have resulted in the execution of innocent people. [14] The Supreme Court did little to dispel people's doubts with its recent ruling that new claims of innocence are almost never reviewable by the federal courts through habeas corpus petitions. [15]

    It is sobering to recall that when the Supreme Court overturned all the existing death sentences in 1972 on constitutional grounds, a number of innocent lives were spared. Five of those who were on death row at the time went on to prove their innocence. [16] These innocent lives might well have been sacrificed and the same is undoubtedly true of some who are on death row today.

    The recent release of Walter McMillian from Alabama's death row on March 2, 1993 illustrates this continuing danger. [17] Mr. McMillian faced execution for six years. His appeals were turned down four times, despite the fact that no physical evidence linked him with the crime and twelve witnesses placed him elsewhere at the time. Only the discovery by new attorneys of improper procedures used by the prosecutors and of witnesses who changed their stories allowed the conviction to be overturned and charges to be dropped. [18] Except for a series of fortuitous events, Mr. McMillian might have been executed while the courts refused to hear his valid claims of innocence.[19]

    As the number of death row inmates across the country continues to reach record highs, and as the pace of executions accelerates, the probability of innocent people receiving the death penalty increases. This, too, will likely increase the doubts which people have about this ultimate punishment.

    Awareness of Longer Sentences

    Most Americans are poorly informed about the likely sentences which capital murderers would receive if not given the death penalty. Only 4% believed that those sentenced to life for first degree murder would be imprisoned for the rest of their lives. The average estimate of how long such a prisoner would serve was 15.6 years. Even when asked how long someone with a life without parole sentence would serve, only 11% believed that such a person would never be released. As discussed more fully below, those perceptions are far off the mark. Two-thirds of the states utilize sentences for first degree murder which guarantee that the inmate will never be eligible for release. (See Fig. 4 below.) Most of the remaining states forbid considering parole for at least 25 years. (See Fig. 5 below.)

    "Two-thirds of the states utilize sentences for first degree murder which guarantee that the inmate will never be eligible for release. Most of the remaining states forbid considering parole for at least 25 years. "

    RESULTS FROM STATE POLLS

    Although the results from this latest poll may be surprising to those who believe that capital punishment has wide and unwavering support, they are consistent with a series of state polls which have explored some of the same issues over the past five years. These polls repeatedly showed that when people were presented with alternatives to the death penalty, their support for the death penalty dropped dramatically. Polls conducted in recent years in California, Florida, Georgia, Kentucky, Minnesota, Nebraska, New York, Oklahoma, Virginia and West Virginia all concluded that people prefer various alternative sentences to the death penalty. [20]

    Another interesting finding reported consistently in the state polls, and confirmed by the national poll, is that death penalty support drops more with an alternative sentence of no parole for 25 years than with a sentence mandating absolutely no parole, provided that the lesser sentence is combined with the requirement of restitution. [21] This result challenges the notion that people automatically favor the harshest of all possible sentences, such as the death penalty or life with no parole. Rather, people support reasonable alternatives which attempt to restore equilibrium and justice where it has been fractured in society.

    These state polls also indicated the ambivalence which people have about capital punishment. People believe that the death penalty is arbitrary, that it is imposed in a racially discriminatory manner, and that there is a danger that innocent people may be executed by mistake. That ambivalence makes actual jurors hesitant to impose the death penalty when they are faced with the decision. It also leads people to readily prefer realistic alternatives, once they are given the choice.

    Moreover, the support for alternatives to the death penalty appears to be growing. In a national poll in 1986, Gallup reported a 19% drop in support for the death penalty when life without parole was offered as an alternative.[22] The same question produced a 23% drop in 1991 [23]. Now, in 1993, support for the death penalty dropped 28% when this same alternative was offered in the Greenberg/Lake poll. Similarly, a state poll conducted in New York in 1989 revealed that 62% of the people would prefer a sentence of life without parole plus mandatory restitution rather than the death penalty. In 1991, the same question was asked and 73% supported this alternative. [24]

    The state polls reveal a number of other significant public perceptions on the death penalty. For example:

    When Nebraskans were asked which sentence would do the greatest good for all concerned, twice as many selected alternative sentences over the death penalty, and no parole for 30 years plus restitution was the first choice among the alternatives. [25]

    A majority of New Yorkers said they have moral doubts about the death penalty and are not really comfortable with capital punishment. Over 90% of New Yorkers agreed that the best way to reduce crime is to give disadvantaged people better education, job training, and equal employment opportunities.[26]

    Almost half of the respondents in Florida believed that the death penalty is racially and economically discriminatory. [27]

    In Oklahoma, only 5% of the people believe that the existence of the death penalty has definitely made the state a safer place to live. An additional 22% believe it probably has made it a safer place, but 62% of the people responded that it either has probably not or definitely not made Oklahoma safer. Oklahomans would also prefer a sentence of life in prison over the death penalty by a margin of 56-35% if they were convinced that the death penalty discriminates against minorities.[28]

    These and similar results from other states show the shallowness in the support for capital punishment. People are frustrated and frightened about violent crime. If they are offered no alternatives which reasonably meet their concerns for protection and punishment, then the death penalty seems attractive.

    Jurors, too, look for alternatives. As many prosecutors who have brought "sure fire" death cases to juries know, there is often a reluctance by jurors to actually impose the death sentence on guilty murderers. [29] Jurors faced with making life and death decisions repeatedly inquire about the true meaning of a "life sentence," apparently hoping that this sentence will provide them with an acceptable alternative to sentencing someone to death. [30] When they are told that parole eligibility will not be explained, they incorrectly assume that the defendant will be out again in 7 years. Faced with that alternative, jurors often choose death.

    THE TREND TOWARD LONGER INCARCERATION

    The development of prison sentences in which parole is restricted either for a substantial number of years or forever is a growing trend among states today. As a response to violent murders, almost every state, as well as the federal government, now uses a lengthy guaranteed minimum sentence before parole can even be considered. The perception that a murderer convicted of a capital crime will be back on the streets in seven years if not given the death penalty is totally inaccurate.

    "The perception that a murderer convicted of a capital crime will be back on the streets in seven years if not given the death penalty is totally inaccurate."

    This is a significant change from twenty years ago when the death penalty was temporarily suspended by the Supreme Court's ruling in Furman v. Georgia. Nearly 600 death sentences were commuted to life imprisonment by that decision, and almost every inmate has either been released or has an expected parole date set. [31]

    For defendants sentenced today, however, the prospects are quite different. Thirty-three states (plus the District of Columbia and the federal government) employ a sentence of life without parole in some form. (See Fig. 4). A total of 14 states call for the imposition of a life sentence in which parole is not possible for at least 25 years. Still others require that the inmate serve at least 20 years before being considered for release. (See Fig. 5 ). And even in those few states where parole is possible in under 25 years, it is very unlikely that those convicted of the worst crimes would be paroled on their first try, if ever.

    Fig. 4

    LIFE WITHOUT PAROLE STATES[32]

     

     

    Alabama Idaho Missouri Rhode Island* Arkansas Illinois Montana South Dakota California Iowa* Nebraska Utah Colorado Louisiana Nevada Vermont* Connecticut Maine* New Hampshire Washington Delaware Maryland Oklahoma West Virginia* District of Col.* Massachusetts* Oregon Wyoming Hawaii* Michigan* Pennsylvania  

     

    *States without the death penalty.

    In addition:
    * Mississippi, Virginia and South Carolina allow a sentence of life without parole for certain recidivists.
    * Kentucky requires that a murderer serve half his term if sentenced for a number of years. Thus, a sentence equivalent to life without parole is available by sentencing the defendant to an exceedingly long term of years.
    * In Wisconsin, the sentencing judge has the power to set the parole eligibility date which, in reality, could be longer than a person's natural life. A similar provision is in force in Alaska.
    * The federal government employs life without parole for murders under certain statutes.

    Fig. 5

    RESTRICTED PAROLE:
    Years Before Parole Eligibility Under Available Sentences
    for 1st Degree Murder Convictions

     

     

    Alaska* 33 yr Kentucky 25 yr N. Carolina 20 yr Texas 35 yr Arizona 25 yr Minnesota* 30 yr N. Dakota* 30 yr Virginia# 21 yr Florida 25 yr New Jersey 30 yr Ohio 20 yr   Indiana# 30 yr New Mexico 30 yr S. Carolina 30 yr   Kansas* 40 yr New York* 25 yr Tennessee# 25 yr  

     

    *States without the death penalty.

    #Actual minimum sentence is longer, but inmates could be released after the years stated if they received both parole and all possible "good time" credit.

    Under Georgia law, anyone previously imprisoned under a life sentence must serve 25 years before parole consideration.

    Canada requires that a convicted murderer serve 25 years before being eligible for parole.

    EFFECTIVENESS OF ALTERNATIVE SENTENCES

    People are frightened by press accounts of parole consideration for such notorious criminals as Charles Manson and Sirhan Sirhan. No doubt, people believe that if these criminals are eligible for parole, anyone would be. But neither of these men was sentenced under a life without parole scheme, since that penalty had not been enacted when they had committed their crimes. The fact that these and similar cases receive consideration for parole, even though denied, tends to obscure the fact that today such offenders would not even be eligible for parole. In every state, the myth that if people are not given the death penalty they will be released in 7 years is simply not true.

    People are also disturbed by reports of prisoners who actually are released after a relatively short time, some of whom commit additional crimes. In Texas, for example, there is much confusion about sentencing. Prisoners, on the whole, are only serving 20% of their sentences and recidivism is a serious problem. [33] Typically, even those with a life sentence have been getting out in less than six years, partly due to the overcrowding in Texas' prisons. [34]

    What is not widely known, however, is that for those convicted of capital murder, the reality is now quite different: a life sentence for them means they would not even be eligible for parole for 35 years. However, Texas law forbids either side from informing the jury about the true meaning of a life sentence in a capital case, and so death sentences are being returned under a gross misperception. Jurors, and the public in general, mistakenly believe they must choose between releasing a violent murderer in 6 years or imposing the death penalty, even though the reality is quite different.

    "States that have used the sentence of life without parole say it works as promised. California has had a sentence of life without parole for over 25 years and not one person sentenced under this law has been released from prison."

    States that have used the sentence of life without parole say it works as promised. California has had a sentence of life without parole for over 25 years and not one person sentenced under this law has been released from prison. [35] In Alabama, U.S. Court of Appeals Judge Edward Carnes, who headed the state's capital punishment division as assistant attorney general for many years, said that "life without parole in Alabama means just that--no parole, no commutation, no way out until the day you die, period." [36]

    Louisiana has perhaps the nation's toughest life sentence law. "Life in the state of Louisiana is just that--life," said a pardons board official in Baton Rouge. "There are no 50-year life sentences or 25-year life sentences. Life means natural life." Nearly a 100 lifers have served 20 years or more at Louisiana's State Penitentiary in Angola. [37]

    In South Dakota, all those given life sentences serve without possibility of parole. The only chance for release is through the commutation process requiring unanimous approval of the commutation board and the governor. No one convicted of homicide has been commuted since 1974. [38]

    In Connecticut, assistant public defender Robert Gold described his state's recent experience with the life without parole alternative: "The sentence means what it says. You get carried out of the prison in a pine box as your only means of exit. Parole, good time, or other means of shortening the sentence are not available to people who have been convicted of [a] capital felony." [39]

    Most of the states without the death penalty now utilize a sentence of life without parole for their worst offenders. Michigan, for example, has had a mandatory life law for first degree murder at least since 1931. It also bears the distinction of being the first English-speaking jurisdiction to permanently abolish the death penalty. For the past decade, the governor has averaged only one commutation per year of those sentenced to life for first degree murder. The time served for those few who were commuted between 1983 and 1990 averaged 27 years. [40]

    In the District of Columbia, the voters overwhelmingly rejected the death penalty shortly after the city council passed legislation allowing for a sentence of life without parole for first degree murder. In New York, Governor Cuomo has also proposed this sentence as an alternative to reinstating the death penalty.

    Commutation of Sentence

    For those who would opt for a sentence under which prisoners could never be released, the theoretical possibility of executive clemency may appear to be a problem. In most states, either the governor or an appropriate board has the power to commute sentences. [41] Unless restricted by law, such a process could result in the reduction of a life without parole sentence to a simple life sentence where parole is possible.

    In reality, however, this is a very remote possibility. Governors have the same power to grant clemency in death sentences but rarely do. On the average, there has only been 1 such commutation in 20 years for each state with the death penalty. [42] Presumably, if the same defendants had been given life without parole sentences, governors would have had even less incentive to commute them since the possibility of a mistaken execution would no longer be a motivation. This is borne out in states like Michigan, California and South Dakota which have had a life without parole sentence for some time and where commutations of those convicted of first degree murder are exceedingly rare or non-existent.[43]

    Moreover, the power to grant clemency is needed for those cases where evidence challenging the defendant's innocence or sentence arises only after the trial and appeals. The Supreme Court recently reinforced the need for such a safety valve when it refused to review the claims of innocence from a condemned Texas inmate, Leonel Herrera. "Clemency," said the Court, "is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." <[44]

    Some states have even gone so far as to restrict the executive's power of clemency in the worst cases. In California, for example, a prisoner serving life without parole cannot even apply for clemency for 30 years.[45] And in New York, Gov. Cuomo has proposed a constitutional amendment that would forbid anyone from granting clemency to those serving life without parole, should the legislature adopt such a sentence instead of the death penalty. [46] Thus, the possibility that dangerous criminals would be granted clemency is practically non-existent.

    JUROR AWARENESS OF ALTERNATIVE SENTENCING

    In America, juries are the voice of the people. As with the public at large, those who have served as jurors often prefer alternative sentences to the death penalty. A 1992 survey of nearly 800 jurors revealed that only 41% supported the death penalty if alternatives like life without parole were offered. [47] But just as the public is unaware of the fundamental changes in U.S. sentencing laws which have led to longer sentences, so, too, those with the responsibility for considering death sentences are without the correct information. Jurors in capital cases are particularly troubled because they believe they must choose between sentencing someone to death or allowing them to be released in a relatively short time. As the late Georgia Supreme Court Judge Charles Weltner said, "Everybody believes that a person sentenced to life for murder will be walking the streets in seven years." He went on to predict that the option of 20 to 25 years parole ineligibility "would lower the number of death penalties that are given." [48]

    The only problem with this prediction is that Georgia law (and the law of many other states) forbids the judge from explaining anything to the jury about parole possibilities, even if the judge receives a direct question from the panel while they are deliberating on a defendant's life or death sentence. In 23 of the 29 states which utilize sentencing by the jury in capital cases, there is an absolute prohibition against any evidence or argument on parole.[49] As a result jurors are left to their own misperceptions.

    In one Georgia death penalty case, the jurors were interviewed after they returned their death sentence. Their comments clearly indicated that they were considering sparing the defendant's life but were swayed by the belief that he would be out in seven years:

    "Some of the jurors were wanting to know would he get out in like seven years on good behavior .... If we were gonna' put him in prison, we wanted to make sure he would stay there. But ... we didn't really feel like he would .... we really felt like we didn't have any alternative."[50]

    The jurors in this case sent a note to the judge inquiring about the meaning of a life sentence: "Does life imprisonment mean Mr. Rogers (the defendant) would be eligible for parole in seven years or less on good behavior?" The Court replied: "You are not to concern yourself with the repercussions of either punishment that you fix. I cannot tell you as to the consequences of either of your sentences that you have for your consideration." After receiving this non-answer, the jurors returned a death sentence 34 minutes later. [51]

    Nor were this jury's concerns or final decision unique. A recent study looked at every Georgia trial in which a death penalty was returned by a jury since 1973. In 70 of the 280 cases, the jurors interrupted their deliberations to try to determine how soon the defendant might be released if he were given a life sentence. In all the cases, the jurors' inquiries were rebuffed by the court and a death sentence was returned. [52] According to the Prosecuting Attorney's Council of Georgia, the issue of parole "arises in almost every capital sentencing trial." [53]

    Although Georgia does not have a life without parole sentence, some defendants, depending on their crime and prior history, may be sentenced so that they are not eligible for parole for 25 to 30 years. That is significantly different from release after the presumed 7 years and could clearly make a life or death difference in the jury's decision.

    Interviews with jurors in other states reveal a similar pattern of concern about the likelihood of early release. In Virginia, those convicted of capital crimes must serve 25 years before becoming eligible for parole and certain repeat offenders may never be considered for parole. However, Virginia law also forbids the jury from considering that information in deciding whether a defendant should be given a life or a death sentence. Jurors thus proceed on grave misperceptions when making their all-important determination. A study by the National Legal Research Group demonstrated the danger of uninformed jurors. The study found that prospective jurors in a sample Virginia county:

    Believed that a capital defendant sentenced to life imprisonment will likely serve only 10 years in prison;

    Believed that the length of time a capital defendant will actually serve when sentenced to life imprisonment is important to the penalty determination;

    Would disregard a judge's instruction not to consider parole when sentencing a capital defendant; and

    Would be influenced significantly in their sentencing decisions by information about Virginia's mandatory minimum sentence of 25 years for capital defendants. [54]

    From this and similar studies in other states [55], it is clear that many jurors are sentencing people to death because they either lack adequate alternatives or because they are unaware that such alternatives exist. Executions based on such misinformation represent a travesty of justice. As the late U.S. Court of Appeals Judge Alvin B. Rubin noted, the "widely held misconceptions about the actual effect of imposing a life sentence raise an unacceptable risk that the death penalty may be imposed on some defendants largely on the basis of mistaken notions of parole law."56

    Even when a state has incorporated a life without parole option into its choice of sentences, the jurors are likely to believe that the defendant will still be released and, therefore, are more likely to return a death verdict. In a survey of 250 potential jurors in Louisiana, an overwhelming 92% of those polled interpreted a "life sentence without the benefit of probation, parole or suspension of sentence" as meaning that the individual would still be eligible for release in a number of years. [57]

    Politicians often add to these inaccurate perceptions when they use the death penalty to bolster their campaigns. For example, while running for governor of California as a pro-death penalty candidate, Dianne Feinstein claimed: "You can't expect somebody to be deterred from committing murder if they know they will only serve four to five years." [58] What she neglected to say is that for those who face the death penalty, the only alternative sentence in California is life imprisonment with no possibility of parole. It is not surprising, then, that 64% of Californians erroneously believe that those sentenced under life without parole would nevertheless be released. [59]

    Interestingly, politicians mistakenly believe that their constituents strongly prefer the death penalty over its alternatives. In New York, for example, 70% of the legislators polled thought their constituents would prefer the death penalty over a variety of alternatives. In fact, over 70% of the people would choose the alternative of life without parole plus restitution. [60]

    This research implies that a sentence which eliminates parole for a substantial period, especially if coupled with a restitution requirement, is an appropriate alternative. It is appropriate because people prefer such an alternative to capital punishment and it protects society as well as the death penalty. Under the present system people are being sentenced to death under the erroneous assumption that, otherwise, the prisoner would be released early. To the extent that jurors have been choosing the death sentence in past cases based on this assumption, the executions which resulted are tragic mistakes.

    THE EFFECTS OF A LIFE SENTENCE

    The existence of a stringent life sentence can either partially or completely eliminate the imagined need for the death penalty. In some states, a life without parole sentence is used as an option when the death penalty is not selected; in other states, like Michigan and Massachusetts, it exists as a complete replacement to capital punishment. In Maryland, for example, the state added the sentence of life without parole in 1987 as a choice for the jury in capital cases. Jurors are specifically instructed that they can choose a sentence of life without parole instead of the death penalty. In the five years since then, only eight new defendants have been added to the state's death row. A similar reduction in death sentences has resulted since Oklahoma introduced life without parole in 1988. That year, Oklahoma sentenced 18 people to death. Last year, there were only five death sentences.[61] In contrast, Florida, which does not have life without parole, added 45 people to its death row in 1991. [62]

    Sentences with significant minimum terms can also provide the public with the protection from repeat offenders that they want. An inmate released at the age of 55 or 60 years old is statistically far less likely to engage in crime than someone in their late 20s. Violent crime arrest rates peak at age 18 and then gradually decline to almost zero at age 60 and over.[63] As Louisiana's district attorney, Harry Connick, Sr., said: "When a guy gets to be 60, he's not gonna rip and run a lot. Not like he used to." [64] In addition, convicted murderers are among the least likely offenders to repeat their crime, even if released. [65]

    "When a guy gets to be 60, he's not gonna rip and run a lot. Not like he used to."

    --Harry Connick, Sr., District Attorney in Louisiana

    Thus, if the death penalty were eliminated tomorrow, the capital defendants of most states would face life sentences with no possibility of parole. In other states, they would have to serve lengthy minimum sentences before even being eligible for parole. By the time they were released, they would be in an age group where crime is at its lowest. [66]

    Prisoners Serving Life

    Inside prison, a number of wardens report that those serving life sentences are the best-behaved prisoners in their entire system. Leo Lalonde of the Michigan Department of Corrections says of those serving life without parole sentences: "After a few years, lifers become your better prisoners. They tend to adjust and just do their time. They tend to be a calming influence on the younger kids, and we have more problems with people serving short terms."[67] Similarly, Alabama officials noted that their life without parole inmates commit 50% fewer disciplinary offenses per capita than all other types of inmates combined. [68]

    Lifers can also make a significant contribution to society in the time given them. For example, Craig Datesman at Graterford Prison in Pennsylvania coordinates a Lifers project to help young people who have had some trouble with the law to go straight. "We have taken a life and so we feel it's our responsibility to save a life now," said Datesman. [69] Executions, of course, cut off the possibility of any restitution to society or the family of the victim.

    "We have taken a life and so we feel it's our responsibility to save a life now."

    --Craig Datesman, coordinator of a Lifers program at Graterford Prison in Pennsylvania

    It is true that lengthier sentences can add to the costs of imprisonment. But as a replacement for the death penalty, even a sentence of life without parole would not add significantly to the prison population, and would, in fact, be cheaper than the prolonged litigation associated with a death sentence. Approximately 250 inmates are added to death rows around the country each year. Spread over the entire country, that is not a significant addition to a prison population which now numbers over 1 million.[70]

    RESTITUTION

    Requiring those who have committed murder to make some monetary restitution to the family of the victim is strongly supported by those choosing alternatives to the death penalty. However, this sanction has not yet been widely employed by states. Inmates generally receive little in the way of remuneration for work performed in prison, usually barely enough for cigarettes or candy. A requirement of restitution might mean raising the pay for prison work. Nevertheless, the various opinion polls discussed above show that a requirement of restitution is one of the most consistent demands by those preferring alternatives to the death penalty.

    One measure of what might be a feasible form of restitution was included in a New York opinion poll. New Yorkers were about evenly split in saying that $150,000 in restitution to the family of the victim would be either "about right" or "too little." The $150,000 restitution figure was derived from a requirement that the prisoner work 40 hours per week, 50 weeks per year, over 25 years at $3 per hour. [71] While the details of a restitution plan need to be worked out, polls show that the concept is extremely important to many people and could be incorporated further into the correctional system.

    Many states are becoming more conscious of the needs of victims in their criminal justice systems. [72] Although funds for victim assistance are often provided directly from the state budget, some states are proposing restitution from the work of prisoners themselves. A bill before the 1993 Nebraska legislature would abolish the state's death penalty and instead impose a restitution requirement along with a sentence of life without parole. And in Arkansas, California, Wisconsin, Idaho, and Oregon, restitution to the victim's family can already be required of the offender in homicide cases. OTHER ALTERNATIVES: DECREASING THE AMOUNT OF CRIME

    When considering the range of alternatives to the death penalty, the length of incarceration is not the only issue to be weighed. The discussion should also include alternatives which help reduce the risk of violence and murder. Crime prevention through community policing and gun control, employment opportunities, drug and alcohol rehabilitation programs, early intervention for abused and mentally handicapped children are all alternatives to capital punishment in that they lower the risk of crime in the first place.

    "Crime prevention through community policing and gun control, employment opportunities, drug and alcohol rehabilitation programs, early intervention for abused and mentally handicapped children are all alternatives to capital punishment in that they lower the risk of crime in the first place."

    Governments, of course, cannot fund every program that presents itself. Each program, including the death penalty, has its costs. If the death penalty were eliminated, there would be an immediate savings of millions of dollars for counties and states which could be transferred to other programs with proven records for reducing crime. [74] In the final analysis, it is these alternatives which actually address the rise in violence that prompted this country's return to the death penalty.

    FAMILIES OF MURDER VICTIMS

    It is sometimes argued that the death penalty is necessary to assuage the grief suffered by the family of the murdered victim. For some families that may be true. However, in a country with 25,000 murders and 25 executions per year, only one in a thousand families will actually receive such a "benefit." The rest may be left to wonder why their loss did not merit the same distinction. In fact, as many family members attest, neither the death penalty nor its alternatives can substitute for the tremendous loss of a loved one. A life sentence, on the other hand, does offer a sense of finality, rendered relatively quickly, as well as an opportunity for some restitution or reconciliation in the future.

    Marietta Jaeger's seven year old daughter, Susie, was kidnapped and murdered, but she has never thought the death penalty offered any solace:

    The death penalty causes family members more pain than other sentences. The continuous sequence of courtroom scenes inherent in death penalty cases only serve to keep emotional wounds raw and in pain for years.... Actually, the memory of the victim is grossly insulted by the premise that the death of one malfunctioning person will be a just retribution for the inestimable loss of the beloved.

    ...

    In my case, my own daughter was such a gift of joy and sweetness and beauty, that to kill someone in her name would have been to violate and profane the goodness of her life; the idea is offensive and repulsive to me. [75]

    In many ways, of course, the death penalty is no benefit at all: the threat of an execution means that there will almost always be a lengthy trial and years of appeals. Over forty percent of death penalty cases are turned back for reconsideration. [76] Once a family becomes caught up in the quest for an execution, they are likely to follow a path of disappointment and failure.

    "The death penalty causes family members more pain than other sentences. The continuous sequence of courtroom scenes inherent in death penalty cases only serve to keep emotional wounds raw and in pain for years."

    --Marietta Jaeger, whose daughter was murdered

    Many families of victims are totally opposed to the death penalty. They echo the thoughts of Odine Stern, former director of Parents of Murdered Children, that no sentence can ever "equate to the loss of your child's life and the horrors of murder." [77] Frequently, victims' families recognize that the death penalty will inflict the same pain they have felt on the accused's family. As one mother replied when asked at the funeral of her murdered son if she wanted the death penalty: "No, there's been enough killing." [78]

    Murder Victims Families for Reconciliation, another organization which deals with the grief of families, is planning a major national conference and educational program for June of 1993 around the theme of moving from violence to healing. As an organization, they are opposed to the death penalty. William Pelke, one of the organizers of the conference and the grandson of a murder victim, summed up his belief in alternative sentences:

    "A simple life sentence without the possibility of parole can ease the pain much sooner and enable the victim's family to begin the process of healing.... As long as the thought remains that justice has not yet been carried out, the healing process that must take place is put on hold."[79]

    THE POLITICS OF DEATH

    "Life without parole is achievable immediately. The Legislature could enact it Monday. I would sign the measure Tuesday. It would apply to crimes committed the next day. In fact, the only thing preventing the next cop killer from spending every day of the rest of his life in jail is the politics of death."

    --Mario Cuomo, Governor of New York

    In some states, politicians who favor the death penalty have resisted stiffer sentences which eliminate parole because they fear that with real alternatives in place there will be no more need for the death penalty. In New York, for example, the politicians who have succeeded in derailing Gov. Cuomo's alternative of life without parole are those who favor the death penalty. They do not hide their manipulation of the issue: they would rather have criminals get out sooner than give up the death penalty as a cheap symbol for being tough on crime. This is what Gov. Cuomo called "the politics of death":

    Life without parole is achievable immediately. The Legislature could enact it Monday. I would sign the measure Tuesday. It would apply to crimes committed the next day. In fact, the only thing preventing the next cop killer from spending every day of the rest of his life in jail is the politics of death.[80]

    The perennial sponsor of the death penalty in New York, Vincent Graber, Democratic Assemblyman from Erie, admitted that his Senate colleagues opposed the life without parole bill because its passage would make the death penalty "less of a campaign issue." [81] The New York Daily News, long a supporter of the death penalty, became tired of this blatant manipulation and editorialized for a life without parole alternative:

    Why won't the Legislature adopt the obvious alternative--life without parole? Because pols would rather grandstand on the death penalty. It is cheap political expedience, not wise public policy. [82]

    Recently, even Graber has acknowledged that he might have to accept the life without parole sanction as the New York legislature moves further away from overriding Cuomo's veto. [83]

    As in New York, some South Carolina politicians are afraid that the passage of life without parole would result in less support for capital punishment. Death penalty advocate Sen. John Drummond (D-Greenwood), for example, strongly opposed life without parole legislation:

    If we pass this, you can't tell me that you will ever be able to seat a jury that will vote for the death penalty. In essence, what you're doing is asking us to vote against the death penalty. [84]

    A similar scenario has been followed in Texas, where a number of state prosecutors have opposed Gov. Richards' life without parole proposal. Harris County District Attorney John Holmes stated simply: "Those who ought to be confined forever ought to be executed." [85]

    In the end, however, people will select politicians who conform to their opinions. For years, the myth that Americans love the death penalty has fueled an expansion of capital punishment and politicians' cry for more executions. But as the public's preference for alternative sentences becomes more widely known, and as those sentences become incorporated into law, the justifications for the death penalty will have finally disappeared.

    CONCLUSION

    America may now be ready to abandon the death penalty. People strongly prefer alternative sentences to the death penalty once they are given the choice. The lengthy sentences which people prefer and which guarantee that convicted murderers will stay behind bars are now in place in almost every state in the country. To the extent that support for the death penalty continues, it is because the public in general, and jurors in capital cases in particular, are still unaware of this fundamental change in U.S. sentencing practice.

    Adequate alternatives are indeed in place throughout the country. Almost every state now severely restricts even the possibility of parole so that convicted murderers will not be released to the community for literally decades. The public wants to be sure that murderers will not, in fact, be released after a few years and that the families of victims are compensated for their tragedy. As these ingredients become standard in the country's sentencing schemes, the death penalty may once again become a minority position in this country.

    References

    Methodology Used in Poll

    The latest poll results cited in this Report are based on a nationwide telephone survey of 1,000 registered voters conducted between February 28 and March 1, 1993 by Greenberg/Lake and the Tarrance Group. The sample was distributed based on voter turnout in the last three presidential elections. A sample of this type is likely to yield a margin of error of +/-3.1%.

    [1] Savannah News-Press, Mar. 23, 1986, at 7C, (quoted in Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Columbia Human Rights Law Review 211, 213, n.4 (1987)).

    [2] Lane, "Is There Life Without Parole?": A Capital Defendant's Right to a Meaningful Alternative Sentence, 26 Loyola of Los Angeles Law Review 325, 390 (1993) (juror Robbins).

    [3] M. Cuomo, New York State Shouldn't Kill People, The New York Times, June 17, 1989.

    [4] R. Bohm, L. Clark, & A. Aveni, Knowledge and Death Penalty Opinion: A Test of the Marshall Hypotheses, 18 Journal of Research in Crime and Delinquency 360, 360 (1991).

    [5] Editorial, No Parole Means What It Says, San Francisco Chronicle, April 13, 1990 (citing a governor's study covering 1965 to 1990).

    [6] See, e.g., H. Bedau, The Case Against the Death Penalty 5 (1992) (murder rates in death penalty states compared to non-death penalty states based on the U.S. Uniform Crime Reports, 1980-89).

    [7] H. Zeisel & A. Gallup, Death Penalty Sentiment in the United States, 5 Journal of Quantitative Criminology 285, 287 (1989).

    [8] See, e.g., Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, U.S. General Accounting Office, at 5 (1990).

    [9] A. Gallup & F. Newport, Death Penalty Support Remains Strong, But Most Feel Unfairly Applied, The Gallup Poll News Service, June 26, 1991, at 4.

    [10] See, e.g., Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty, The Death Penalty Information Center (1992).

    [11] J. Horgan, The Death Penalty, Scientific American, July 1990, at 17 ("More than a century of research in the United States and other countries . . . has produced no evidence that capital punishment reduces the rate of murder or other violent crime.").

    [12] See, e.g., Tabak & Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty, 23 Loyola of Los Angeles Law Review 59 (1989).

    [13] Radelet, Bedau, & Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases (1992).

    [14] Id. at 271.

    [15] Herrera v. Collins, No. 91-7328, slip opinion, at 26 (Jan. 25, 1993).

    [16] See Pierce & Radelet, The Role and Consequences of the Death Penalty in American Politics, 18 N.Y.U. Review of Law & Social Change 711, 718 (1990-91).

    [17] See P. Applebome, Black Man Freed After Years on Death Row in Alabama, The New York Times, March 3, 1993, at A1.

    [18] CBS-TV News show "60 Minutes," broadcast Nov. 22, 1992, showed the case unraveling with one of the chief witnesses saying he lied at the trial.

    [19] For other examples of prosecutorial misconduct in death penalty trials, see Killing Justice: Government Misconduct and the Death Penalty, Death Penalty Information Center (1992).

    [20] Information regarding the various polls is on file with the Death Penalty Information Center.

    [21] W. Bowers & M. Vandiver, New Yorkers Want an Alternative to the Death Penalty, Executive Summary, appendix summarizing other state polls (1991).

    [22] Zeisel & Gallup, note 7, at 290.

    [23] M. Leary, Counter-Trend to Death Penalty Emerging in California, Pacific News Service, April 20-24, 1992, at 6 (reporting on California and national polls); see also Gallup & Newport, note 9.

    [24] See Bowers & Vandiver, note 21, at 3, 13.

    [25] Bowers & Vandiver, Nebraskans Want an Alternative to the Death Penalty, Executive Summary, at 7-8 (1991).

    [26] See Bowers & Vandiver, note 21, at 2, 6.

    [27] Cambridge Survey Research, Attitudes in the State of Florida on the Death Penalty, Executive Summary, at 5 (1986).

    [28] Grasmick & Bursik, Attitudes of Oklahomans Toward the Death Penalty, Univ. of Oklahoma, at 21, 25 (1988).

    [29] See, e.g., J. DeParle, Abstract Death Penalty Meets Real Execution, The New York Times, June 30, 1991 (only 36% of those in a Justice Department survey voted for the death penalty in simulated cases typical of those punishable by death).

    [30] See Lane, note 2, at 333.

    [31] Marquart & Sorenson, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders, 23 Loyola of Los Angeles Law Review 5, 23 (1989).

    [32] See J. Wright, Life-Without-Parole: An Alternative to Death or Not Much of a Life At All?, 43 Vanderbilt Law Review 529 (1990) for state statutes regarding life without parole sentences, especially at notes 70-129 and accompany text. Some statutes have a specific sentence of life without parole; in other states the restriction is in the parole regulations. In addition to the states designated by Wright, Colorado, Oregon, Utah and the District of Columbia now have sentences of life without parole for some offenses.

    [33] See Funding the Justice System: A Call to Action, the American Bar Association, at 54 (1992).

    [34] B. Denson, The Pros, Cons of Throwing Away Key, The Houston Post, July 14, 1991, at A-1.

    [35] See note 5.

    [36] A. Malcolm, Capital Punishment Is Popular, But So Are Its Alternatives, The New York Times, Sept. 10, 1989, at 4E.

    [37] See Denson, note 34, at A-1.

    [38] J. Kerkhove, Lifer?, The Messenger, July-Sept., 1992, at 19.

    [39] Letter from Robert Gold to the Death Penalty Information Center, Jan. 26, 1993.

    [40] See Michigan Department of Corrections Memoranda, Feb. 10, 1993 (Terry Murphy), and April 11, 1991.

    [41] For example, all 36 States that authorize capital punishment have provisions for clemency. Herrera v. Collins, No. 91-7328, slip opinion, at 23, n.14 (Jan. 25, 1993).

    [42] M. Radelet, Clemency in Post-Furman Cases, manuscript (Nov. 29, 1991).

    [43] See notes 5, 38 & 40 above.

    [44]Herrera, No. 91-7328, slip opinion, at 20 (footnotes omitted).

    [45] M. Leary, Counter-Trend to Death Penalty Emerging in California, Pacific News Service, April 20-24, 1992, at 6.

    [46] E. Kolbert, As Vote on Death Penalty Nears, Cuomo Advocates Life Sentences, The New York Times, June 19, 1989.

    [47]The View From the Jury Box, The National Law Journal, Feb. 22, 1993, at S2.

    [48] See note 1.

    [49] See Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Columbia Human Rights Law Review 211, 216 (1987).

    [50] See Lane, note 2, at 390 (emphasis added). Ten of the twelve jurors expressed similar concerns.

    [51] Id. at 383.

    [52] Id. at 334.

    [53] Id. at 334, n.42.

    [54] See W. Hood, Note: The Meaning of "Life" for Virginia Jurors and Its Effect on Reliability in Capital Sentencing, 75 Virginia Law Review 1605, 1624-25 (1989).

    [55] See, e.g., Dayan, Mahler, & Widenhouse, Searching for an Impartial Sentencer Through Jury Selection in Capital Trials, 23 Loyola of Los Angeles Law Review 151, 164-176 (1989). 56 King v. Lynaugh, 828 F.2d 257, 260 (5th Cir. 1987) (emphasis added).

    [57] Cypress Research and Development Corporation, letter and report to the Loyola Death Penalty Resource Center, Aug. 31, 1990.

    [58] The Sunday Times (London), Mar. 18, 1990 (quoted in G. Pierce & M. Radelet, The Role and Consequences of the Death Penalty in American Politics, 18 N.Y.U. Review of Law & Social Change 711, 725 (1990-91)).

    [59]Californians' Attitudes About the Death Penalty: Results of a Statewide Survey, public opinion poll implemented by the Field Research Corporation in Dec., 1989.

    [60] See Bowers & Vandiver, note 21, at 3, 9.

    [61]Death Verdicts Slip as No-Parole Grows, The Daily Oklahoman, Nov. 10, 1992.

    [62] Bureau of Justice Statistics, Capital Punishment 1991, at 8 (October, 1992).

    [63] See Bureau of Justice Statistics, Report to the Nation on Crime and Justice, Second Edition, at 41-42 (March, 1988).

    [64] B. Denson, see note 34.

    [65] See Marquart & Sorenson, note 31. In 1972, all the existing death sentences were overturned by the Supreme Court's decision in Furman v. Georgia. In 1989, Marquart and Sorenson looked at the cases of the 558 inmates whose death sentences were commuted to life imprisonment by Furman. Of these, 243 of the inmates were released to the community. Only one of those released committed a new homicide. Id. at 22-24

    [66] See note 63 (ages of those arrested for violent crime); see also Capital Punishment 1991, note 62, at 10 (ages of those admitted to death row).

    [67] Katz, In Mich., Life Without Parole, Newsday, June 20, 1989, at 5. Thomas Coughlin, (former) Commissioner of the New York State Department of Correctional Services made similar statements about "true lifers" in New York. See Tabak & Lane, note 12, at 124-25.

    [68] See Wright, note 32, at 549.

    [69] S. Eisele, Lifers Help Youths Stay Out of Jail, Philadelphia Inquirer, Mar. 20, 1991, at 1-B.

    [70] See M. Mauer, Americans Behind Bars: A Comparison of International Rates of Incarceration, The Sentencing Project, at Table 1 (Jan., 1991).

    [71] W. Bowers & M. Vandiver, People Want an Alternative to the Death Penalty: A New Look at Public Opinion, (draft, to be published in Law & Society Review), Jan. 15, 1993.

    [72] See, e.g., B. Galaway, Restitution As Innovation or Unfilled Promise?, 52 Federal Probation 3 (1988).

    [73] See Restitution: Eligibility/Types of Restitution Allowed (Draft), National Victim Center, Arlington, VA (1993).

    [74] See, e.g., Millions Misspent, note 10.

    [75] Letter from Marietta Jaeger to the Death Penalty Information Center, Feb. 17, 1993.

    [76] Memorandum to Senator Joseph Biden, Chairman, Senate Judiciary Committee, from James S. Liebman, Professor of Law, Columbia University School of Law: Rate of Reversible Constitutional Error in State Capital Convictions and Sentences that Underwent Federal Habeas Corpus Review Between 1976-1991 (Revised), July 15, 1991, at 4; see also Editorial: Virginia Murder, Federal Review, The Washington Post, Dec. 6, 1991. Forty percent of the cases that survive review in state court are reversed in federal courts.

    [77] Payton, How Parents of Slain Children Cope, Oakland Tribune, Mar. 6, 1987, at C7.

    [78] T. Mathis, 1 The Voice 2, publication of Murder Victims Families for Reconciliation (March 1992) (quoting her mother).

    [79] Letter from William Pelke to the Death Penalty Information Center, Feb. 7, 1993.

    [80] M. Cuomo, New York State Shouldn't Kill People, The New York Times, June 17, 1989.

    [81] M. Humbert, Annual Death Penalty Battle Resumes in NYS, The Cortland Standard, Feb. 5, 1990, at 11.

    [82]Instead of Death Penalty, Life Without Parole, Editorial, The New York Daily News, May 20, 1992, at 34.

    [83 ] Jolt to Death Penalty: Voters Reject 2 of Its Backers, N.Y. Daily News, Sept. 13, 1990, at 11.

    [84] Coley, Senate Eliminates Life Without Parole Sentence, UPI, March 19, 1986.

    [85] S. Friedman, No-parole Irks Prosecutors, Houston Post, May 6, 1991, at A-1.

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    It's Closure Mongering Time Execute Terrorists at Our Own Risk NEW YORK TIMES

    April 28, 2001
    Page A-23

    Journal: It's Closure Mongering Time

    By FRANK RICH
    OP-ED

    Only in America could they throw an execution like this.

    On eBay, dozens of bidders have vied in auctions like the one inviting them to "commemorate the final days of America's worst terrorist" with a "colorful T-shirt." The folks at PETA, never content to leave well enough alone, have demanded that Timothy McVeigh's last meal be meat-free, prompting Mr. McVeigh to write them a letter suggesting that since his "time is short," they should proselytize Ted Kaczynski instead. Though an effort by the Internet pornographer who runs "Voyeur Dorm" to merchandise the execution as a live $1.95 Webcast was derailed in court, such video could yet proliferate on the Web anyway, not unlike the Tommy Lee-Pamela Anderson sex tape. By boasting about "the latest encryption technology" and "state-of-the-art video conferencing," Attorney General John Ashcroft has all but dared an international army of hackers to hijack the execution transmission he's sending over 500 miles of telephone lines from the death chamber in Terre Haute to the bombing's victims and survivors in Oklahoma City.

    Mr. Ashcroft has also set the inevitable theme of the weeks between now and May 16: closure, big time. He has said that he hopes his closed- circuit TV show can help Oklahoma City's bereaved "meet their need to close this chapter in their lives." He hopes the country can achieve closure, too, by ignoring Timothy McVeigh. To this end, the attorney general has attempted to manage news coverage by forbidding TV interviews with the murderer and by trying to strong-arm the press into minimizing any reportage whatsoever of his final weeks of utterances. Otherwise, Mr. Ashcroft says, the media could become "Timothy McVeigh's co-conspirator in his assault on America's public safety and upon America itself."

    Certainly all Americans hope that those who have suffered directly from this tragedy find a measure of peace in any way they can. But the notion that the country has something to gain by sweeping the murder of 168 innocent people and the execution of one guilty person under the rug is something only a platitudinous politician who's in over his head, like our new attorney general, could dream up. For some national wounds there is never any "closure" - witness the searing, conflicted emotions that rose up in many Americans, whatever their views about Vietnam, as they heard this week about the hidden past of Bob Kerrey. Only by learning from the blood bath in Oklahoma City, in which more Americans were killed than in our last war, in the Persian Gulf, can we grapple with its ghosts.

    Already the McVeigh execution has served to deepen our growing national debate about the death penalty. As Sara Rimer of The Times reported this week, even some Oklahoma City victims and survivors have become vocal opponents of capital punishment - despite the efforts of Mr. Ashcroft, a death penalty advocate, to misrepresent all these grieving families as single-minded in their desire for Mr. McVeigh's obliteration. On Monday, George Ryan, the once pro-capital punishment Republican governor of Illinois who declared a moratorium on executions after repeated exonerations of death row inmates, said he's now "struggling" over the issue and could not "throw the switch" on Mr. McVeigh.

    A parallel, and less predictable, debate has arisen over the issue of televising the execution. Ever since the author Thomas Lynch made an eloquent case on this page in February for the public's right to see the death being enacted by the state in its name, many anti-death penalty editorialists have seconded it. One common line of argument is that a public execution will cause Americans to question their own support for future executions - though a chilling counterargument has it that a televised execution might go down all too smoothly in a gladiatorial culture where the W.W.F. and "reality" programming like MTV's "Jackass" and UPN's "Chains of Love" are prime-time entertainment. It's worth asking if we can actually tell the difference between reality and "reality" programming anymore. Don Hewitt, whose "60 Minutes" once aired a Kevorkian euthanasia tape, told The Philadelphia Inquirer that broadcasting an execution by lethal injection would be ho-hum. "People watch that on `E.R' every week," he said. "What's the big deal?"

    But even as we debate the merits of holding or watching executions, there seems to be widespread support for Mr. Ashcroft's view that we avert our eyes from those of Mr. McVeigh himself. Charles Gibson of ABC News parroted the attorney general when he declared that he would anchor his network's execution coverage from Oklahoma City rather than Terre Haute because "the more important message is still with the survivors and the victims, and not with the message of this guy." (Since when is a network news anchor's job to send a message, let alone by his choice of urban backdrop?) Similarly, the country's largest retailer, Wal-Mart, has banned the selling of "American Terrorist," the journalistic account of the bombing written by the 2 Buffalo News reporters who covered the story, Lou Michel and Dan Herbeck. The Army and Air Force Exchange Service, I learned this week, has also elected not to sell the book on military bases - maintaining, according to Maj. Philip Smith, its public affairs officer, that the decision was based only on "sales potential."

    That explanation doesn't fly. The book is in fact a best seller - No. 2 on The Times's list - and deservedly so. The authors have woven 150 interviews, including 75 hours' worth with Mr. McVeigh, into what is likely to stand as the definitive record of the crime and the man who committed it. Though much publicity has attended the book's revelation of Mr. McVeigh's abhorrent lack of remorse, as exemplified by his description of the bombing's child casualties as "collateral damage," the Ashcroft head-in- the-sand attitude prevails in the relatively scant attention paid to the bulk of the book devoted to the ordinariness of its American terrorist. Mr. McVeigh was not your typical troubled loner who explodes on the nation's front pages. He was a Buffalo Bills fan, a junkie not for drugs but news, a Catholic of catholic cultural tastes ("Star Wars") whose unremarkable senior high school yearbook photo inscription read, "Take it as it comes, buy a Lamborghini, California girls."

    The "most disturbing thing about him," said Mr. Michel, the book's co- author, in a conversation this week, "is that he's a 3-dimensional person. Most people would love to dismiss him as a Charles Manson or Jeffrey Dahmer a flat-line monster with a swastika on his forehead. But he's a son of suburbia who had every advantage in life." If anything, Mr. McVeigh, who had a latchkey childhood marked by some bullying, offers "a through line to the school shooters of today," says Mr. Michel. "It's to our peril as a society not to try to understand how he went from fairly normal to terrorist. For us to turn our back, and say no, this is just too painful to look at, is to invite the possibility of it happening again."

    According to the psychiatrist hired by his defense attorney, Mr. McVeigh was sane. The rage that he brought home from the Persian Gulf war, in which he was a decorated soldier, was stoked by the insular, itinerant gun-show culture, which fed his Second Amendment absolutism and hatred of government (he considered assassinating Janet Reno). "There are millions of Americans who share his anti-government views," says Mr. Michel, some of the most extreme of whom are now writing fan letters to the condemned man in prison. Even Mr. McVeigh "calls them kooks and crazies," adds the writer, who remains in communication with his book's subject in his final weeks.

    Those weeks are going to be filled with the white noise of an all-American circus. Any profiteer or publicity hound that can find his way to Terre Haute will do so, and will soon be dutifully showcased on TV for our delectation. But the false pieties of supposed leaders like John Ashcroft and those in the media who mimic his closure mongering are more offensive than the clowns peddling their tacky T-shirts. The circumstances that produce a Timothy McVeigh are not going to be eradicated by shutting down his interviews, banning his words or, for that matter, ending his life. To promote the fiction that such closure is attainable is, as our attorney general would put it, to be a co- conspirator in Mr. McVeigh's assault on America's public safety and upon America itself.

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    Closure? The Execution Was Just the Start Closure? The Execution Was Just the Start WASHINGTON POST

    Sunday, April 29, 2001
    Page B03

    Closure? The Execution Was Just the Start

    By DAVID SPIEGEL

    With his decision to allow closed-circuit TV coverage of Timothy McVeigh's May 16 execution in Terre Haute, Ind., Attorney General John Ashcroft has acceded to the wishes of more than 250 survivors and relatives of the victims, who will gather at an Oklahoma penitentiary to witness the execution live in a bid, as Ashcroft put it, to "close this chapter in their lives."

    These people have said that witnessing the death of this mass murderer will help them move on. Commentators have reinforced that notion, borrowing a word from pop psychology -- "closure" -- and bandying it about as though watching McVeigh die could somehow end the daily pain of grief, the constant reminders of loved ones lost, futures robbed, joys that might have been and never will be.

    I doubt it. Not only is it unlikely that McVeigh's surviving victims will benefit, but the impact of witnessing an execution can be surprisingly damaging -- even for witnesses who have no emotional connection with the condemned or the victims. That's what I discovered with my colleagues Andrew Freinkel and Cheryl Koopman when we examined the effects on journalists who witnessed the execution of Robert Alton Harris, the convicted murderer of two teenage boys, in the San Quentin Prison gas chamber on April 21, 1992.

    I'm not trying to compare survivors of the Oklahoma City bombing and relatives of the victims with those reporters. Their motivations are very different: Those who want to see McVeigh die think the punishment is appropriate revenge; reporters sometimes apply to cover executions because of their opposition to the death penalty. Nor do I intend to draw a close parallel between Harris's death in a gas chamber and McVeigh's by lethal injection. My aim is simply to point out something that people often underestimate -- that witnessing trauma is not far removed from experiencing it.



    Fifteen of the 18 reporters who covered Harris's execution agreed to participate in our study, the results of which were published in the American Journal of Psychiatry in 1994. It was a small but significant sample: The reporters had been chosen by lottery and were thus random representatives of the much larger group that had applied to cover Harris's execution.

    We found that these professional journalists suffered severe after-effects, at least in the short term. One was tearful for weeks afterward; several told us they felt listless and had difficulty concentrating; a number reported nightmares. Several sought counseling, and one quite ambitious reporter uncharacteristically declined to cover the Los Angeles rioting that occurred shortly after the execution.

    These men and women were displaying many of the reactions usually associated with acute stress. They had difficulty managing the emotions that the execution aroused. More than half of our sample said they felt distant from their own emotions, a third reported that they felt "confused and disoriented," 60 percent were "estranged or detached from other people," and more than half said they tried to "avoid thoughts or feelings about the execution." One-third reported feeling "despair or hopelessness," and 20 percent felt "uncontrollable and excessive grief." I happened to speak to the wife of one of them some six months later. When I asked how her husband was doing, she replied: "He is a basket case. If he ever covers another execution, we're getting a divorce."

    Bear in mind that this was a mentally healthy, seasoned group of reporters who had earnestly sought the opportunity to cover the execution. They were in no danger, had a job to do, could look to one another for support, and had no emotional tie to Harris or his victims. Yet in our interviews with them, we found levels of post-traumatic symptoms comparable to those we found among employees at 101 California Street in San Francisco, where eight people were fatally shot on July 1, 1993, by a disgruntled law-firm client who entered the building armed with high-powered assault weapons. The Harris execution witnesses were just as troubled by intrusive thoughts, nightmares, uncontrolled emotions, detachment from others and a desire to avoid remembering as were the office workers who not only heard shots fired but easily could have been killed themselves.

    I have devoted my career to studying ways to help people cope with stress -- from combat, natural disasters, crime, sexual abuse and illnesses such as cancer and HIV infection. Trauma experts have found that it helps to face stress directly, with strong social and emotional support. This means confronting the feelings caused by trauma and illness, and doing so with the guidance of professionals and others who suffer similar problems. Finding an active way to respond reduces the sense of helplessness, even if that means accepting loss and grieving it. The powerful way the community in Oklahoma City has come together is just such a healing force, as are the shared and openly expressed emotions of its citizens. But while I have no doubt that facing stress can help, I do not believe that watching an execution will aid in this process.

    Let me make it clear that I have no sympathy for McVeigh. A visit I made to Oklahoma City shortly after the bombing as a consultant to the Oklahoma Psychiatric Association was proof enough of the depth of pain and suffering he inflicted on the entire community with his murderous bombing. These citizens have faced terrible losses. But witnessing the killing of this killer will inflict a new trauma on top of the old one -- and lead to more pain rather than so-called closure.

    I once interviewed a brave and ethereally calm woman who had been repeatedly raped and tortured by the Chilean secret police during the Pinochet regime. I asked her how she had survived the horrific experiences. "I felt sorry for them," she replied simply. In doing so, she had successfully distanced herself from her tormentors by reflecting on the kind of person who would do such things.

    It matters enormously to victims of crime that they and their loved ones are different from their victimizers. Sadists such as McVeigh enjoy inducing and watching the suffering of others. The decent people who have been irreversibly harmed by him may feel some obligation to watch him die, or expect some final act of contrition. They shouldn't bank on it. When the murderer of Polly Klaas, the 12-year-old California girl abducted from her home in 1993, was convicted, he outraged the court by suggesting that Polly had accused her father of sexual abuse before he killed her -- thus rubbing salt into an open wound. It would not be out of character for McVeigh to do something similar; just think of his chilling reference to the 19 children who died as "collateral damage."

    While some family members certainly want revenge, and many, though not all, undoubtedly feel justice is being served by the death sentence, they should be wary of allowing McVeigh the opportunity to do more damage than he has already done, to cause them more trauma and to sap more of our collective attention. One family member of a victim of the Oklahoma City bombing put it best when she snapped at a reporter: "The only 'closure' I'm ever going to have is when they close the lid on my coffin."


    David Spiegel is a professor of psychiatry and behavioral sciences at Stanford University School of Medicine

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    Don't Give Him the Satisfaction Don't Give Him the Satisfaction TIME MAGAZINE

    April 22, 2001

    Don't Give Him the Satisfaction

    By MARGARET CARLSON

    Last Thursday 250 victims of Timothy Mcveigh's bomb--some who survived the blast, others who lost loved ones to it--were granted their request to witness his execution on closed-circuit television. In announcing this departure from normal procedure, Attorney General John Ashcroft spoke of the need "to close this chapter in their lives" and emphasized "the magnitude of this case." (There are too many mourners, given the 168 killed, to fit into the prison observation room.)

    Ashcroft is right to grant the survivors anything they think will help them through thenight. But there's a question whether this execution will be a last milestone in their hellish journey or yet another trauma to absorb. Will public witness deliver a moment of catharsis, restore a measure of equilibrium to a shattered universe? Or is it one last way for McVeigh to victimize them? Many of the survivors obviously hope for a closure that has so far eluded them, for a miraculous lifting of their grief. But they have their expectations in check. "In the early stages I wanted to see the execution because I was hoping to hear 'I'm sorry' from McVeigh," says Tom Kight, who is raising his eight-year-old granddaughter after his stepdaughter's death. "But from what I gather there will be no remorse. The execution is just an end to one part of this. It's not closure." Priscilla Salyers, who was critically wounded, is watching not as "part of a healing process" but in solidarity with fellow victims.

    Bud Welch, who lost his 23-year-old daughter to McVeigh, has decided to stay home. He once talked to a Texas couple who told him that if they had it to do over again they wouldn't witness the death of the man who killed their son. "There is nothing good about watching a human take their last breath," Welch says, "that is going to give you any peace."

    No one can be certain whether witnessing will help the survivors. But we can be sure that it helps McVeigh. He behaves as if the unexamined death is not worth dying. He needs a spectacle to confirm his sense of martyrdom. Indeed, his attorney told reporters that McVeigh's desire for an audience was an argument in favor of granting his request for a public broadcast, when it should be an argument against. McVeigh will be the first condemned killer to get not only a last meal and last words but also a last photo op. Other moves to deprive him of the attention he craves--forbidding jailhouse interviews, limiting phone calls--are futile in light of the telecast. Cynthia Ferrell Ashwood, who lost her sister, hopes for a boycott, believing it would punish McVeigh more. "I would like him to die very much alone, which is how my sister died. It won't hurt him for me to watch him die. It will just please him."

    The last public hanging took place in 1937 in front of the courthouse in Galena, Mo., where 500 onlookers scrambled for pieces of the rope used to hang Roscoe Jackson, who murdered a traveling salesman. Thirty-five years after that spectacle, capital punishment was banned in America. Since its reinstatement in 1976, the death penalty has been sanitized and closeted. The rope in the town square begat Old Sparky, which begat lethal injection, both administered behind tall prison walls. Bringing executions back out into the open--not closed-circuit TV but TV--is a leap most often advocated by those who want to do away with them. They believe that capital punishment would lose the support of a civilized society if people actually saw the state commit the act for which it seeks retribution. Perhaps we should have our executions broadcast as widely as the Super Bowl.

    Closure for victims is one of the few arguments left to proponents of the death penalty. Studies show that it is not a deterrent, that it is disproportionately imposed on the poor and sometimes mistakenly so. Alongside mandatory life without parole, it may not even be the ultimate punishment. Is death worse than a life spent shackled in a cell? The only sure thing about capital punishment is that it is cost effective.

    So we await tales from those who return from the viewing room, where most of us, gratefully, will never go. I wouldn't want to be the reporter having to put a microphone in the face of one of the mothers coming out of that bleak, nameless room in Oklahoma City. But somewhere along the way I'd like to know: Did you find a compensating grace in McVeigh's death, some sliver of serenity that eluded you before? Are you wiser, are you lighter, is there one less drop of grief in your ocean of sorrow? Perhaps some crimes are too horrendous to be forgiven. Only retribution will do, and justly so. You can help us. We need to know.

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    U.S. Death Penalty: Victims Seize the High Ground U.S. Death Penalty: victims seize the high ground UNESCO COURIER

    October, 2000

    U.S. death penalty: victims seize the high ground

    On the eve of the U.S. presidential elections, the death penalty - repudiated by almost all democratic nations - is notable only for its absence from debate. Abolitionists are changing their tactics to 'win over' a majority

    By IVAN BRISCOE
    UNESCO Courier Journalsist

    Though the legal battle was arduous, Gary Gilmore eventually got what he had longed for on January 17, 1977. Tied by nylon rope to an office chair, with a white target disc pinned to his chest, the petty thief and lovesick murderer stared down the barrels of five state rifles. After ten idle years, the firing squad in a Utah jailhouse sent a signal around the world: executions in the United States were back.

    Since Gilmore's landmark demise - hastened by his own preference for death in place of jail - a further 663 people have followed, killed by lethal injections, electric currents or poison gas administered on judicial orders. What started in the late 1970s as a dribble of ill-fated convicts had, by the turn of the century, become a regular feature of the nation's public life, played out to a peculiar combination of silence from U.S. politicians and last-ditch pleas for clemency from the European Union, Amnesty International and other moral bulwarks of the West.

    The contrast with the rest of the democratic world- of which the United States considers itself the leader - is more marked on the issue of the death penalty than possibly any other aspect of domestic policy. While U.S. foreign policy bears down on "rogue states," its executioners keep good rhythm with the likes of Iran and Iraq (though remain way behind group leader, China). When a proposed worldwide moratorium on the penalty came up for debate in the UN Human Right Commission in April 1999, the U.S. predictably voted against, along with Cuba, China, Sudan and nine other nations. Some 108 countries, on the other hand, have in law or in practice abolished the punishment, with Turkmenistan and Ukraine among the most recent to enlist.

    The appeal of tough justice
    For the average high-level U.S. politician, however, the death penalty has only minor administrative defects, if any at all. Of the four presidential and vice-presidential candidates lining up in elections on November 7, all support the punishment - from Democrat candidate Al Gore to Republican George W Bush, who has ratcheted up its use in his last five years as Texas governor, granting only one reprieve and rubber-stamping 144 executions. Public support for the penalty, in spite of a major new abolitionist offensive that has helped cut approval ratings from a high of 80 per cent, still hovers over 60 per cent.

    "I call it the silver bullet, in reference to the Lone Ranger [a U.S. television series set in the Wild West]," explains Robert Bohm, a professor in criminology and death penalty expert from the University of Central Florida. "A lot of people in this country who are very fearful of crime, whether rationally or not, are looking for a silver bullet to deal with it - and the death penalty is a very attractive bullet."

    A host of arguments, used previously by philosophers as venerable as Thomas Aquinas and Jean-Jacques Rousseau, have helped make the penalty an emblem of tough justice. Despite a lack of agreed data, defenders of capital punishment in the U.S. argue that the system is cheap, acts as a deterrent and prevents supposedly "liberal" parole boards from releasing jailed murderers into an unsuspecting world - a practice that Dudley Sharp, from the Justice For All project, says has led to 10,000 killings since 1971. Above all else, the penalty is vaunted as the only true outlet for a society outraged by heinous crimes; as Rousseau wrote, "in killing the criminal, we destroy not so much a citizen as an enemy."

    In response, a new generation of abolitionists has quietly shed its moral indignation. No longer are the lives of serial killers and sociopaths held to be inherently worth preserving. Instead, press-friendly groups like the Death Penalty Information Centre stress the injustices of its application, from the racial inequities that it breeds to the risk that innocents might be slaughtered.

    For the Centre's director, Richard Dieter, this strategy aims to conquer America's famed middle ground, that majority of people who seem to support the penalty without great conviction or passion. "The death penalty seems to have all this baggage, all these problems - innocent people, international opposition, unfairness, racial problems," he argues. "That's a lot of baggage, and it may not be worth it." In January, to Dieter's delight, Illinois' Republican governor shelved the penalty over concerns that innocent people might be executed. The governor, fittingly, had been a lifelong supporter of capital punishment.

    Miguel Angel Martinez is one of around 3,600 inmates whose life is at stake. In 1992, a Texan court found the prospective Air Force cadet guilty of murdering three men in a gang knife assault -an attack in which his new lawyer insists he was a "bit player." He was sentenced to death at the age of 17, four years before he was legally entitled to drink beer.

    Writing from what he terms the "man-made hell" of Terrell Unit in Texas, Martinez says he harbours hopes for the new abolition campaign. But death row has razed all his faiths. Religion he sees as a "hollow vessel," while society is a place of hate: "you know, there is still an actual conditioning in people to accept punishment even when other options exist . . . We are all sadists and masochists to a degree."

    For many outside the United States, it is precisely this unnecessary cruelty that taints the death penalty, even though the same countries that now scorn the punishment enjoyed their own illustrious moments with the noose, guillotine and hatchet man. British law - which heavily influenced practice in its colonies - was bent on execution. By the 18th century, for instance, 222 crimes were punishable by death in Britain, including robbing a rabbit warren and cutting down a tree. The public, in turn, liked nothing better than a picnic at the gallows. When one notorious murderer was hanged in 1807 in London, 40,000 people turned up, though an ensuing mass frenzy killed a hundred of them.

    Following World War II and the spread of codified human rights, many nations reconsidered, then scrapped the penalty. But the United States proved an exception to the rule: even in the ten-year hiatus from 1967 to Gilmore's execution, courts and states, acting on a temporary plunge in the penalty's popularity, shunned what one Supreme Court justice termed the "machinery of death" instead of dismantling it outright. Indeed when the Supreme Court issued its Furman vs Georgia rulings in 1972, declaring the penalty to be "cruel and unusual," furious southern state legislators busied themselves with redrafting their statutes to accommodate the Court's objections. As violent crime climbed steeply upwards in the recession-hit 1970s, a new-look death penalty was ready and waiting in several state law books. Some 38 states now feature the sentence in their penal codes, while around three per cent of the nation's convicted murderers are dispatched to death row.

    Victims' rights and the draw of opinion polls
    Underlying this penchant for capital punishment - particularly marked in eight southern states, home to 90 per cent of recent executions - appears a deep-rooted sense of what justice means. When Alan Wolfe, a Boston University politics professor, went to Texas to research opinions towards the 1998 execution of Karla Faye Tucker, he was astonished by the response: rather than feel pity for the cheery 38-year-old inmate who had repented and "found God," most people believed death to be perfect retribution for her pickaxe slaying of an ex-lover.

    "I think it touched on a very basic, fundamental view of society that people have, that is pre-political and pre-religious, that has to do with an inherent sense of what justice means," says Wolfe. "It's about paying for your sins and creating some sort of equilibrium: a life is taken, and therefore another life should be taken."

    Retribution and scant pity for the murderer dominate the thinking of those who fervently back the penalty - especially the victims' relatives. The first relative allowed under a new Texan law in 1996 to witness the execution of the murderer recalled how "I would like to have seen him humiliated a bit. I think he should have been brought in and strapped down in front of us." In radio talks shows across the land, callers demand that killers be "fried" so they can "meet Hitler."

    The irony is that this atavistic sense of justice is so out of synch with other trends in U.S. culture. Most Christian teachings point to the importance of forgiveness, and most Americans are practising Christians. Daytime television has made therapy, and its motifs of confessing past sins and reinvention, central to people's lives. But murder and punishment, above all in the south, still follow the dictates of an "eye for an eye." And while violent crimes soared over the past two decades, claiming the lives of 500,000 Americans (with around 17,000 murders a year at present) and drawing gruesome media coverage, adherence to this philosophy of uncomplicated vengeance grew inexorably. The victim - and concepts of victimhood - now stand at the heart of the modern U.S. death penalty, whether in the sentencing phase of the murder trial, when bereaved relatives take the stand, or in state politicians' rhetoric. "If the debate is just over the penalty or not the death penalty," sighs Dieter, "it's like asking whether you're for criminals or victims."

    Public opinion in countries like Britain or France, however, was hardly very different. In almost all cases, clear majorities supported the penalty, though political leaders resolved to push through with abolition all the same. Politicians in the United States, on the other hand, have been unwilling or unable to emulate these feats. The generation that was so closely linked to the civil rights era - the Kennedys, Martin Luther King - may have been equipped to do so, but its figureheads were fated to die early. Meaningful debate has been further impeded by the penalty's deployment at state level, often boxing the issue into a local crime perspective, and by the absence of other proposals such as gun control or poverty programmes, ruled out by costs and lobbies. But more than any other factor, it is what observers see as the frenetic nature of U.S. democracy, with its comparatively weak political parties, incessant elections and hyper-sensitivity to opinion polls, that has exposed candidates to constant courting of voters' hunches.

    The price of opposing the penalty became evident in the mishaps of Michael Dukakis, Democratic presidential candidate in 1988, who turgidly repeated his opposition to the penalty when asked what he would do if his wife and children were slain and thus was branded "weak" on crime. All politicians swiftly learnt that support for the penalty, though it may not have mattered to them much as an issue, was a vote-securing synonym for "toughness" on crime. For elected district attorneys (local prosecutors), who often later become judges, exploitation of the issue became rife. "It's a quick way to get on television and get your name in the paper," says Michael Mears, from the Georgia Indigent Defense Council. "It's a placebo for the public, like giving the patient a sugar-coated tablet."

    With victims occupying the moral high ground and politicians unable to draw themselves away from the glitter of a poll booster, the practical tack taken by the new abolitionists seems sensible. Already they appear to have convinced the majority of the American public that innocent lives may have been shed. Dieter's centre lists 87 people exonerated from death row since the penalty's reinstatement, while several DNA tests are currently underway in an effort to discover the first scientific confirmation of an executed innocent.

    Racial bias in imposition of the death penalty has provided yet further ammunition for the punishment's opponents. Although black murderers are proportionately under-represented on death row, there is undeniable statistical evidence showing that death penalties are imposed almost entirely (over 80 percent) when victims are white. In Georgia, meanwhile, Mears reports that only one out of 159 district attorneys is black. For many campaigners, says criminology professor Robert Bohm, the penalty is simply "a new form of social control that replaced slavery."

    Calls for a moratorium
    In the case of Martinez, prejudice (he is Mexican-American), poverty, and the fact that an accomplice's father was a local judge appeared to have vitiated all chance of leniency. Indeed his legal saga reads like a litany of the death penalty's iniquities: his trial lasted five days, the alleged accomplices are free, and a large part of the local district attorney's office has since been sacked for taking bribes.

    "It is like two people playing chess, one who is very good at it and another who is just learning how the pieces move," he recalls of his trial. His case and others have led campaigners to hope a moratorium may be called as the "silver bullet" is sullied by procedural failure, and maybe buried by a richer variety of crime policies. Sceptics for their part warn that the machinery of death could just be reinvented in a sleeker, "fairer" guise. But one thing seems clear: if the penalty goes, it will not go at the behest of an ethical revolution. As Wolfe argues, "if you leave out the morality entirely, I think Americans would be very sympathetic to halting or at least slowing capital punishment."

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