Boston Globe Editorial Asks "Whether Execution by Any Method Is Right"

Commenting on the recent halting of executions over the lethal injection controversy and DPIC's Year End Report, the Boston Globe raised the question of "whether execution by any method is right." Their editorial concluded that "[t]his hit-and-miss system offers no protection for society," and stated that a life-without parole alternative would "protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome."

The entire editorial follows:

Rethinking the death penalty

THE UNITED STATES may be slowly ridding itself of the urge to impose the death penalty, according to a study released last week. A protracted execution in Florida on Wednesday starkly illustrated one of the reasons for the change in attitude.

Angel Diaz was the 53d and last person to be executed in the United States this year. He was strapped onto a gurney and given an injection that was supposed to kill him within 15 minutes, but he lay there squinting and grimacing, and seemed to be trying to speak. Prison officials had to give him a second injection, and it took him 34 minutes to die. .

Governor Jeb Bush promised an investigation and suspended executions pending the results, but the exact reason for Diaz's ordeal ignores the wider question of whether execution by any method is right. The murder took place in 1979, and any deterrent effect has vanished. Thousands of people have been murdered in the state since then, yet only 64 have been executed. This hit-and-miss system offers no protection for society.

Other states are starting to accept this reality, according to a survey by the Death Penalty Information Center in Washington, D.C. The 53 executions this year are down from 60 the year before, and 98 in 1999. The New Jersey Legislature imposed a moratorium on executions, and North Carolina and California began legislative studies of their systems. The issue gained urgency in Califonia last week when a federal judge ruled that the injection procedures followed there were so cruel that they violated the US Constitution.

Based on the Florida experience, it's easy to understand why states are wary. Florida abandoned the electric chair in 2000 in favor of lethal injections, but Diaz's prolonged death shows this method to be similarly inhumane. Even if a painless system were devised, the variation of sentencing across multiple jurisdictions is inherently arbitrary.

Support for capital punishment remains steady at two-thirds of those polled nationally, but when details are provided of the executions, that begins to erode. And when given a choice of execution or life without parole, a slight majority in a recent Gallup Poll favored the life sentence. This punishment would protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome.

Before he died, Diaz called his execution an act of vengeance. Perhaps, but given the 27-year lapse between crime and punishment, there was no public outcry for his death. His execution rather shows the capricious nature of a brutal act that should have no place in American society.

(Boston Globe, Dec. 19, 2006).  See Editorials and Arbitrariness.


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NEW VOICES: Oregon Paper Calls Death Penalty a "Pointless Law"

The Albany Democrat-Herald in Oregon recently editorialized that the "death penalty isn't working," and concluded "that the death penalty here is a pointless law. If we’re not going to apply this law, then getting rid of it would be the less expensive course."  The editorial cited the possibility of error, the arbitrariness of applying the punishment to some dangerous offenders but not others, and the difficulty of ever getting to an execution as reasons for ending capital punishment.  The editorial follows:

Death penalty isn’t working

A group based in Portland wants to abolish the death penalty in Oregon. Maybe they would get more public attention if we had the death penalty in fact as well as in law, and if there was an execution now and then.

Oregon voters reinstated the death penalty twice in the last generation. The 2nd time, in 1984, we did it right, and the courts did not strike down the law.

Instead, the courts did something else. They strung out the appeals so that in the 22 years since the voters acted, not a single person condemned to death has been executed if he didn't want to be.

The only 2 executions that did take place involved convicts who refused to appeal their sentences beyond the mandatory reviews by the state Supreme Court. They evidently realized they were better off dead than spending the rest of their lives in prison.

More than 30 men are on "death row" at the Oregon State Penitentiary. One of them has been there since 1991. No executions are foreseen in the next 5 years.

It's not as though we don't have worthy candidates for capital punishment. Most (though not all) of the condemned men have been convicted not just of aggravated murder but other crimes as well, ranging from assault and burglary to kidnapping and rape.

But while these men deserve to die before their time, there are uncounted others in the prison system who deserve the same fate but are not getting it. Ward Weaver is just one example. He killed 2 girls in Oregon City in 2002. But then he avoided any death sentence by pleading guilty to murder. Now we're taking care of him in prison, and will do so the rest of his natural life.

Besides the lack of even-handedness, one of the other arguments against the death penalty is that someone may be convicted unjustly, and an execution in that case would irreparably compound a miscarriage of justice. Judging by the Oregon cases on death row, it hasn't happened here, but the possibility exists.

The way Oregon has been dealing with this statute — by showing no urgency at all in at least trying to expedite decisions on appeals — it is hard to avoid the conclusion that the death penalty here is a pointless law. If we’re not going to apply this law, then getting rid of it would be the less expensive course.

(Albany Democrat-Herald, Dec. 11, 2006).  See New Voices and Editorials.

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ARBITRARINESS: Federal Judge Deeply Troubled about Inconsistencies in Lethal Injection Rulings

Recently in Ohio and other states, some inmates challenging the lethal injection process in federal courts have been given stays of executions, while others, similarly situated, have been denied stays and have been executed.  This inconsistent application of federal law in capital cases has raised concerns among a number of federal judges.  A stay was recently granted to Ohio inmate Jerome Henderson, but denied to Jeffrey Lundgren.  On December 6, U.S. District Court Judge Gregory Frost denied a stay of execution to Ohio inmate John Spirko.  However, Judge Frost sharply criticized the lack of any clear guidance from the Court of Appeals on this matter, saying it left the lower courts in a "morass of deadly ambiguity" as to how to apply the law:

This Court agrees [with a judge dissenting from the Henderson decision] and cannot fathom how the appellate court’s earlier concern over how “[i]t would be grossly unfair for different panels of this Court to reach opposite conclusions on the issue of the constitutionality of Ohio’s method of lethal injection so that some capital defendants are put to death by lethal injection while other similarly situated are spared” meshes with what has transpired in regard to Lundgren and Henderson. In the words of the Sixth Circuit, there is no “consistent, uniform and fair application of federal law in all such lethal injection cases before the [appellate court].” (Doc. # 107, at 2.) Certainly, Henderson will not complain about the inconsistency, but Lundgren, who was executed on October 24, 2006, would no doubt have been interested in the Henderson panel’s unexpressed rationale.
. . .
[T]his Court is now confronted with two different unreported decisions by two different appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results.
. . .
This Court’s inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.

(Cooey v. Taft, No. 2:04-cv-1156, U.S. District Court for Southern Div. of Ohio, Dec. 6, 2006) (Order denying reconsideration of previous denial of a stay of execution to John Spirko, intervenor). 

See Lethal Injection and Arbitrariness.

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Unanimous Jury Votes for Life Sentence, but Alabama Judge Imposes Death

Oscar Doster was found guilty earlier this year of capital murder in the course of a robbery in Alabama.  Doster claimed that his co-defendant actually committed the murder.  The jury unanimously recommended that Doster be sentenced to life without parole.  In Alabama, unlike most other death penalty states, the judge is allowed to override a jury's recommendation for life.  Typically in other states, even one juror's vote for a life sentence will prevent the court from imposing a death sentence.  Judge Ashley McKathan rejected the recommendation of all 12 jurors that Doster's life be spared.

(Andalusia Star News, Nov. 22, 2006). 

See Arbitrariness and Sentencing

See also DPIC's report, Blind Justice.

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Florida Schedules Execution of Man Who Defended Himself, But Could Not Speak English

The last execution scheduled for 2006 involves a Florida inmate, Angel Nieves-Diaz, who defended himself at his trial and needed an interpreter because he did not speak English.  Diaz, a native of Puerto Rico, was convicted and sentenced to death in 1986 for a murder in connection with a robbery of a bar in Miami in 1979. 

Diaz's execution is scheduled for December 13 and would be the 4th execution in Florida this year, the most executions in that state in 6 years.  In addition to his claims that his representation failed to produce a fair trial, Diaz is also challenging the lethal injection process in Florida.  Groups in Puerto Rico, which bars the death penalty in its constitution, are urging that Diaz receive clemency from the governor.

(Sun-Sentinel (AP), Nov. 14, 2006; Miami Herald, Nov. 15, 2006; letter from Civil Rights Commission of Puerto Rico, Nov. 20, 2006). 

See Representation and Arbitrariness.

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Death Sentence Upheld Despite Abysmal Representation

The U.S. Court of Appeals for the Sixth Circuit upheld the conviction and death sentence of a death row inmate on a tie vote (7-7), despite the fact that the defendant was represented by an attorney who did not even learn his client's true name.  The defense lawyer misled a reviewing court about his experience in capital cases and has been indicted for perjury.  The defendant, who was tried in Kentucky as James Slaughter but whose real name is Jeffrey Leonard, is apparently brain damaged and endured a brutal childhood.  A number of judges have concurred that the lawyer's investigation into Leonard's background was below Constitutional standards, but there were not enough votes to say that a better investigation would have made a difference in sentencing.

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Clemency Urged for Mentally Ill Man in North Carolina

At a press conference on November 1, the North Carolina Black Leadership Caucus called for the governor to commute the death sentence of Guy LeGrande.  Le Grande is scheduled to be executed on December 1.  He was allowed to represent himself at his 1996 murder trial, despite the fact that he claimed to be hearing messages from Oprah Winfrey and Dan Rather through television sets.  His defense lawyer, Jay Ferguson, said LeGrande falsely believes he has already been pardoned and will receive a large sum of money.  "The problem is you have a mentally ill person representing himself," Ferguson said. "When his standby counsel asked the court to review his mental competency, the judge asked the defendant if he wanted to do that and he said no. His response was to tear up the paperwork. So you've got a mentally ill defendant making the call on whether his competency should be examined."

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Texas Newspaper Studies State's Death Penalty Appeals Process

The Austin American-Statesman conducted an extensive study of the quality of representation that death row inmates receive in Texas.  The study concluded that:

Sheltered by an indifferent Texas Court of Criminal Appeals, lawyers appointed
to handle appeals for death row inmates routinely bungle the job, submitting
work that falls far below professional standards, frequently at taxpayer expense.

Some appeals are incomplete, incomprehensible or improperly argued. Others are
duplicated, poorly, from previous appeals.

Whatever their condition, these pieces of shoddy legal work have been
tolerated by the state's highest criminal court for 11 years — during which
273 men and women were executed — despite a state law requiring the court to
ensure that the condemned receive competent legal help.

The court has failed in that obligation, allowing lawyers to submit sloppy,
lazy and inferior work with little oversight and no fear of consequences,
according to an Austin American-Statesman examination that raises troubling
questions about the quality of death penalty justice in the nation's leading
execution state.

One of the appeals cited in the study was written by an appointed attorney, Toby Wilkinson, who clearly just copied portions of a letter written by his client on death row.  The paper quoted the brief to the court, and noted:

"I'm just about out of carbon paper," reads the bizarre appeal, which earned
Wilkinson $22,270 from the Texas treasury. "As soon as I get some more typing
supplies I have about thirty more errors I want . . . in my appeal."

The paper described the response of the Texas Court of Criminal Appeals to the dismal quality of representation in many cases as "feeble."

(Chuck Lindell, Austin American-Statesman, Oct. 29, 2006; two-part series, "Writs Gone Wrong," Oct. 29-30, 2006).  See Representation and Arbitrariness.

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NEW VOICES: Federal Appeals Court Judge of the Fifth Circuit Expresses Legal and Moral Problems with the Death Penalty

Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit was the main speaker at the "Red Mass" on October 4 at the Catholic cathedral in Corpus Christi, Texas.  The Red Mass is an annual liturgy held for members of the legal profession near the beginning of the judicial term.  Its traditions extend back to 13th century Europe.  Judge King spoke about the death penalty, both from her perspective as a judge and as a Catholic.  In both areas, she raised strong concerns about the application of the death penalty in the U.S.

Judge King described the recent legal history of the death penalty, with a particular emphasis on Texas' statute.  She noted that the court of which she is a member mistakenly interpreted a Supreme Court ruling, and then many executions occurred over many years before the Supreme Court corrected the error.  She also expressed serious misgivings about the risk of executing the innocent.  Judge King stated:

[T]he injustice of executing capital defendants under laws that were for so many years undeveloped and in flux is troubling. Think about it. My court's opinion . . . was on the books for twelve years before the Supreme Court struck it down. During those twelve years, many defendants were executed without the constitutionally-required judgment by the jury on whether the defendant was sufficiently morally culpable to be sentenced to death. That is not to say that those defendants were innocent of the crimes for which they were convicted. But it could certainly lead one to ask why, if the jury's judgment about moral culpability was constitutionally required, so many went to their deaths without it.

Also profoundly troubling is the risk that an innocent man will be executed. I must say that from my experience with capital cases, there is usually a great deal of evidence that the defendant is, in fact, guilty. But the lengthy investigation of the Houston crime lab, which exposed evidence of serious problems such as falsified test results, including DNA test results, and the tailoring of reports to fit police theories, certainly suggests that even scientific evidence, to which we normally attach considerable confidence, can be flawed. Only God's justice is perfect justice. The assessment of the death penalty, however well designed the system for doing so, remains a human endeavor with a consequent risk of error that may not be remediable.

In discussing her moral views as a Catholic, she clearly indicated that those views did not dictate her constitutional rulings from the bench.  Nevertheless, she finds a strong denunciation of the death penalty in the U.S. in Catholic teaching, especially given the alternative sentence of life in prison without parole.  Under that teaching, vengeance is not a legitimate justification for the death penalty.  She stated:

Catholics, the people of life, have an opportunity to advocate to our legislators changes in our laws that will align them more closely with the moral law. For the solution to the problems that we face with the death penalty is a political one (not a judicial one), and each of us, as a Catholic citizen and voter, is called upon to promote it.
. . .
The Catholic bishops have recently issued a call to the Catholic community, inviting every Catholic to join in the Catholic Campaign to End the Use of the Death Penalty, not as a partisan campaign but as a moral commitment.
. . .
The Church's campaign has been long in coming, centuries long, but at last it is here and all of should actively and prayerfully support it.

(South Texas Catholic News, Oct. 20, 2006).  Read Judge King's entire statement.  See New Voices and Innocence.

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Pennsylvania Man Freed From Death Row

Dennis Counterman was freed from a Pennsylvania courtroom on October 18, 2006 after serving many years on the state's death row.  Counterman had been convicted and sentenced to death in 1990 for allegedly setting a fire in his own house that resulted in the death of his three children.  That conviction was overturned in 2001 because prosecutors had withheld evidence from the defense indicating that the oldest child had a history of fire-setting. 

At Counterman's orignial trial, the prosecution witnesses said that a burn pattern was discovered that indicated an accelerant was used, even though no accelerant was found.  At later hearings, however, an expert hired by the prosecution said that the prosecution's theory of how the fire started "is not properly supported by today's standards."

Rather than face the uncertainty of another trial, Counterman agreed to enter an Alford plea, that is one in which the defendant does not admit guilt but agrees that the prosecution might have been able to convince a jury of his guilt.  The plea was to a charge of third-degree murder and carried a maximum term of 18 years in prison.  Since Counterman had already served the maximum time, he was released immediately by Lehigh County Judge Lawrence Brenner.  After his release, Counterman said, "I am more frustrated than angry.  I spent all this time for something I didn't even do."

(The Morning Call (PA), Oct. 19, 2006).  See also Maurice Possley's article in the Oct. 18, 2006 edition of the Chicago Tribune about faulty arson investigations in other cases. 

See Innocence and Arbitrariness. 

(DPIC Note: Cases such as that of Dennis Counterman are not counted as part of DPIC's Innocence List, which includes only people cleared of all charges related the original crime.)

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