Killing for Votes: The Dangers of Politicizing the Death Penalty Process

The infu­sion of the death penal­ty into polit­i­cal races is reach­ing new extremes and dis­tort­ing the crim­i­nal jus­tice sys­tem. Although the use of death sen­tences to gain polit­i­cal lever­age is cer­tain­ly not new, the dem­a­goguery aimed at esca­lat­ing exe­cu­tions has become more per­va­sive. Not only are can­di­dates for leg­isla­tive office cam­paign­ing loud­ly on the death penal­ty, even judges and local pros­e­cu­tors are cit­ing the num­bers of peo­ple they have sent to death row in their cam­paigns for office. This polit­i­cal pro­mo­tion of cap­i­tal pun­ish­ment by those respon­si­ble for inter­pret­ing and imple­ment­ing the law inter­feres with the right to a fair hear­ing and increas­es the like­li­hood that inno­cent defen­dants will be executed.

Many of those seiz­ing the anti-crime man­tle not only advo­cate cap­i­tal pun­ish­ment, but also seek to out-do each oth­er in expand­ing the death penal­ty to new crimes, cut­ting appeals, and with­draw­ing the resources crit­i­cal to defend­ing those on death row. Judges, who fre­quent­ly make the ulti­mate deci­sion on whether a defen­dant lives or dies, are often sub­ject to elec­tions, appoint­ments or con­fir­ma­tion pro­ceed­ings in which any judi­cial rul­ing short of exe­cu­tion is attacked as soft­ness on crime. Prosecutors, who have almost unlim­it­ed dis­cre­tion on pur­su­ing the death penal­ty, are repeat­ed­ly pre­sent­ed with an oppor­tu­ni­ty to broad­cast their ​“tough­ness” by seek­ing a death sentence.

If a judge’s rul­ing for the defen­dant … may deter­mine his fate at the next elec­tion, even though his rul­ing was affirmed and is unques­tion­ably right, con­sti­tu­tion­al pro­tec­tions would be sub­ject to seri­ous ero­sion. -Justice Byron White[2]

This politi­ciza­tion results in a sig­nif­i­cant loss for the American peo­ple. Many can­di­dates who know that cap­i­tal pun­ish­ment is not work­ing are afraid to speak out. Respected jurists are rout­ed from office after cor­rect­ly hold­ing cer­tain cap­i­tal pro­ce­dures uncon­sti­tu­tion­al. Death penal­ty tri­als become cam­paign show­cas­es for judges and pros­e­cu­tors. And indi­vid­ual death row inmates, some of whom are prov­ably inno­cent, and oth­ers who would nev­er have been giv­en a death sen­tence if afford­ed a fair tri­al, are denied hear­ings or lawyers because even­hand­ed appeals make for poor sound bites.

Thirty-eight states allow the death penal­ty. In 32 of those states the judges are sub­ject to elections.[3] With dis­turb­ing fre­quen­cy, judges who fol­low the law and over­turn a death sen­tence are chal­lenged for being soft on crime. The pub­lic is encour­aged to view any rul­ing which inter­feres with a death sen­tence as an intru­sive ​“tech­ni­cal­i­ty.” For a judge to fol­low the law and the con­sti­tu­tion can have perilous consequences.

One Vote and Out

Justice Penny White was the only woman on Tennessee’s Supreme Court, hav­ing been appoint­ed to that posi­tion by Democratic Governor Ned McWherter in 1994. She had served admirably for two years on the low­er appel­late court and, in fact, con­firmed the over­whelm­ing num­ber of crim­i­nal con­vic­tions which she reviewed.[4] In the first death penal­ty case before her on the Supreme Court, she joined the unan­i­mous vote of the oth­er jus­tices in affirm­ing the con­vic­tion of Richard Odom, but over­turn­ing his death sen­tence. She also joined, but did not write, a three-judge major­i­ty opin­ion in the same case which found insuf­fi­cient evi­dence to uphold Odom’s death sen­tence for the rape and mur­der under Tennessee’s cap­i­tal pun­ish­ment law. [5]

This gave the Tennessee Conservative Union, a far-right anti-tax group, the open­ing they need­ed to attack her as an oppo­nent of the death penal­ty in the judi­cial elec­tion in August, 1996. White’s oppo­nents, includ­ing the state’s Republican lead­ers, accused her of nev­er vot­ing ​“to uphold a death penal­ty conviction,”[6] (even though this was her first cap­i­tal case and she had upheld the con­vic­tion), and of want­i­ng to ​“free more and more crim­i­nals and laugh at their victims.”[7] Both of the state’s Republican sen­a­tors vot­ed absen­tee before the offi­cial elec­tion and then pub­licly announced that they had vot­ed against Justice White because of her death penal­ty posi­tion in this one case.[8] The Republican Governor, Don Sundquist, pro­claimed before the elec­tion that he would nev­er name some­one to a crim­i­nal court judge­ship unless he was sure the nom­i­nee sup­port­ed the death penalty.[9]

Throughout this cam­paign, Justice White was pro­hib­it­ed by the rules of judi­cial con­duct from dis­cussing the Odom case and defend­ing her legal posi­tion. In the end, she lost the elec­tion and no longer serves on the court. Clearly, if she had gone against her sworn duty to fol­low the law and vot­ed instead to exe­cute Richard Odom, she would still be on the court today.

In Mississippi, Supreme Court Justice James Robertson was removed from office fol­low­ing a recall elec­tion in 1992 in which his oppo­nent attacked Robertson’s deci­sions in death penal­ty cas­es. Robertson was even crit­i­cized for hold­ing that exe­cu­tions were not per­mit­ted for the crime of rape, a posi­tion direct­ly man­dat­ed by long­stand­ing U.S. Supreme Court rul­ings. Nevertheless, Robertson was opposed by the Mississippi Prosecutors Association and was vot­ed off the court.[10] One exam­ple of the patent­ly false adver­tis­ing direct­ed against Justice Robertson read: ​“vote against Robertson because he’s opposed to the death penal­ty and he wants to let all these peo­ple go.”[11] Vote against Judge Robertson because he’s opposed to the death penal­ty and he wants to let all these peo­ple go. -false cam­paign ad

In Texas, Judge Charles Campbell was vot­ed off the Texas Court of Criminal Appeals in 1994 fol­low­ing the rever­sal of a high­ly pub­li­cized cap­i­tal mur­der case. Judge Campbell had served on the bench for 12 years and pre­vi­ous­ly had been a con­ser­v­a­tive pros­e­cu­tor. He was suc­ceed­ed by Stephen Mansfield, who mis­rep­re­sent­ed his own qual­i­fi­ca­tions, had been fined for prac­tic­ing law with­out a license, and had vir­tu­al­ly no crim­i­nal law expe­ri­ence. But he promised to uphold more death sen­tences. Judge Mansfield is now among the judges respon­si­ble for review­ing every death penal­ty case that comes before the court.[12]

Also in Texas, which exe­cutes more peo­ple than any oth­er state in the coun­try, Judge Norman Lanford was vot­ed off the state dis­trict court in 1992 after he rec­om­mend­ed that a death sen­tence be set aside because of pros­e­cu­to­r­i­al mis­con­duct. He was defeat­ed in the elec­tion by Caprice Cosper, a death penal­ty pros­e­cu­tor from the District Attorney’s Office.[13] While work­ing as a pros­e­cu­tor, Cosper kept a hang­man’s noose over her office door.[14] Her cam­paign for judge high­light­ed her sup­port for the death penalty.

In the state of Washington, the senior Justice on the Supreme Court chose to resign in 1995 because he could ​“no longer par­tic­i­pate in a legal sys­tem that inten­tion­al­ly takes human life in cap­i­tal pun­ish­ment cases.”[15] In resign­ing, Justice Robert Utter specif­i­cal­ly warned of the dan­gers of elect­ing judges, because the process has become so politi­cized. Because of that politi­ciza­tion, the state of Washington lost a respect­ed jus­tice who had served for 23 years on its Supreme Court.

The cli­mate has become increas­ing­ly hos­tile towards any judge who has reser­va­tions about the death penal­ty. The for­mer Chief Justice of North Carolina’s Supreme Court, James Exum, had to mount a major cam­paign to counter an effort to dis­cred­it him which focused on his views on the death penal­ty. Chief Justice Exum had made it clear in his deci­sions affirm­ing death sen­tences that he would not let his per­son­al views on the death penal­ty inter­fere with his con­sti­tu­tion­al oblig­a­tion to uphold the law.

Chief Justice Exum sur­vived his elec­tion but expressed dis­may that ​“the pub­lic clam­or for the death penal­ty is becom­ing more shrill”[16] and that it is becom­ing more and more dif­fi­cult for an elect­ed state judge to sur­vive even if he only occa­sion­al­ly over­turned a death sen­tence. He announced that he would not seek re-elec­tion in 1998 and said he was ​“glad [he] will not have to run again.”[17] He even­tu­al­ly resigned before the end of his term.

Appointed Judges Also Under Pressure

Despite the fact that Justice Rosemary Barkett had upheld the death sen­tence in more than 200 cas­es, Senator Orrin Hatch want­ed to see if she was ​“seri­ous enough about the death penalty.”

Even where judges are appoint­ed and not sub­ject to elec­tions, the pol­i­tics of the death penal­ty works to exclude judi­cial can­di­dates who have not pledged blind alle­giance to the death penal­ty. Early in President Clinton’s term the Senate Republicans gave notice that they would chal­lenge any of his judi­cial nom­i­nees whom they con­sid­ered to be insuf­fi­cient­ly com­mit­ted to the death penalty.[18] Considerable oppo­si­tion, for exam­ple, was mount­ed against the Chief Justice of the Florida Supreme Court when she was nom­i­nat­ed for the U.S. Court of Appeals. Despite the fact that Justice Rosemary Barkett had upheld the death sen­tence in more than 200 cas­es, Senator Orrin Hatch want­ed to see if she was ​“seri­ous enough about the death penalty.”[19]

Barkett was ulti­mate­ly con­firmed but the pol­i­tics of the death penal­ty con­tin­ued as those who vot­ed for her were accused of being soft on crime. Senators Diane Feinstein, a vocal death penal­ty sup­port­er, Edward Kennedy, Jim Sasser and Charles Robb were attacked in their re-elec­tion bids because of their vote for Judge Barkett. Sasser lost his seat to Bill Frist, who lat­er was instru­men­tal in the cam­paign to unseat Justice Penny White from Tennessee’s Supreme Court.

Candidate Michael Huffington blast­ed Senator Feinstein with a mis­lead­ing com­mer­cial that said ​“Feinstein judges let killers live after vic­tims died.”[20] His full page ad described the gris­ly details of the mur­ders in three cas­es in which Justice Barkett had vot­ed to reverse the death penal­ty but neglect­ed to give the legal grounds that required the reversals.

An omi­nous sign that such polit­i­cal attacks on judges could esca­late dur­ing this elec­tion year emerged dur­ing the dis­pute over a rul­ing by Judge Harold Baer, Jr. of the fed­er­al District Court in Manhattan. Although not a death penal­ty case, the furor over Judge Baer’s deci­sion to exclude some evi­dence against a drug defen­dant drew calls for impeach­ment from Senator Robert Dole and hints of a demand for res­ig­na­tion from President Clinton. Judge Baer even­tu­al­ly changed his rul­ing on the evidence[21] and then with­drew from the case all together.

Senator Dole has also attacked President Clinton’s two Supreme Court appointees, Justices Ruth Bader Ginsburg and Stephen Breyer, as will­ing to use ​“tech­ni­cal­i­ties” to over­turn death sen­tences.[22] Despite Dole’s effort to posi­tion these Justices as being on the extreme of death penal­ty jurispru­dence, how­ev­er, most of the Court’s recent death penal­ty cas­es have been decid­ed unan­i­mous­ly. In crim­i­nal cas­es, Justice Ginsburg sided 80% of the time with Justices Rehnquist, Thomas and Souter.[23]

Judges Protecting Their Position

Because judges are sub­ject to polit­i­cal attacks, some judges go out of their way to show they are ​“not weak on crime.” The elect­ed judges on Alabama’s Supreme Court took no chances that the pub­lic might mis­con­strue their views. They recent­ly imple­ment­ed mea­sures on their own to speed up the exe­cu­tions of those on death row. They threat­ened to set exe­cu­tion dates even for those who have not com­plet­ed their appeals.[24] The rea­son, how­ev­er, why many of these inmates have not filed fur­ther appeals is that they have no attor­ney, accord­ing to Bryan Stevenson [25], for­mer Director of the Alabama Resource Center, which rep­re­sent­ed death row inmates before all of its fed­er­al fund­ing was eliminated.

In Virginia, the state with the third high­est num­ber of exe­cu­tions, exe­cu­tion dates are being set by the courts in rapid suc­ces­sion. Post-con­vic­tion peti­tions now must be filed direct­ly with the Virginia Supreme Court, which has dis­missed 100% of the habeas cor­pus peti­tions it has received in cap­i­tal cas­es since the death penal­ty was rein­stat­ed. Formerly, peti­tions were filed with the tri­al court, where evi­den­tiary hear­ings could be held. Now, deci­sions dis­miss­ing the appeals are issued a few weeks after the briefs are sub­mit­ted, with no hear­ings, no oral argu­ment, and no allowance for expert assis­tance. Some of the exten­sive briefs sub­mit­ted involve com­plex legal ques­tions, but the same rejec­tion is rapid­ly issued by the court in each case. The Virginia Resource Center, now with­out fed­er­al fund­ing, is faced with an avalanche of cas­es pend­ing exe­cu­tion. With a deplet­ed staff, it must rush to file peti­tions in fed­er­al court or the exe­cu­tions will take place in short order.[26]

It is irre­spon­si­ble for the state courts to fail to con­duct a search­ing review of death penal­ty cas­es. The large num­ber of inno­cent peo­ple who have been dis­cov­ered on death row over the past twen­ty years and the high per­cent­age of cas­es with con­sti­tu­tion­al errors found by the fed­er­al courts, are a strong indi­ca­tion that seri­ous mis­takes are being made at cap­i­tal tri­als. Legislation passed this year dimin­ish­es the role of the fed­er­al courts in review­ing death penal­ty cas­es. This makes it even more impor­tant that state courts be more than a rub­ber stamp of what hap­pened at tri­al. Otherwise, these errors will nev­er be corrected.

In California, a com­plete shift in the death penal­ty deci­sions being hand­ed down by the state Supreme Court was achieved with­out any change in the cap­i­tal pun­ish­ment law. Instead of mod­i­fy­ing the law, a polit­i­cal cam­paign was mount­ed to oust the Court’s Chief Justice Rose Bird and two asso­ciate jus­tices. They were vot­ed out of office after the court had over­turned a series of death sen­tences because of legal defects. With a new Chief Justice, California quick­ly achieved the high­est affir­mance rate for death penal­ty cas­es in the coun­try, affirm­ing an astound­ing 97% of the death penal­ty cas­es that come before the court on appeal.[27] By com­par­i­son, about 35% of death cas­es nation­al­ly are over­turned on appeal, 10 times the rate of the California Supreme Court.[28]

Yet, when it comes to find­ing attor­neys for those on California’s death row, this same court has one of the worst records in the coun­try. Over a quar­ter of the state’s death row, 128 inmates, have not been assigned an attor­ney for even their first appeal. Many death row inmates have gone four years with­out being assigned an attor­ney to start their appeal.[29]

In North Carolina, the state’s Supreme Court, which is led by a new chief jus­tice (who replaced Chief Justice James Exum) and two new Republican jus­tices, has turned a deaf ear to death penal­ty cas­es. In 24 death cas­es reviewed in 1995, the court upheld every con­vic­tion and sent only one case back for resen­tenc­ing. By con­trast, in 1993 – 94, the same court had ordered new tri­als in about 10% of the cap­i­tal cas­es, and new sen­tenc­ings in a quar­ter of the cases.[30]

In the Fifth Circuit of the U.S. Court of Appeals, which decides cas­es from three lead­ing death penal­ty states, Texas, Louisiana and Mississippi, the court has been dom­i­nat­ed in recent years by ultra-con­ser­v­a­tive appoint­ments. As a result, while the nation­al rate for grant­i­ng fed­er­al habeas cor­pus relief has been about 40%, the Fifth Circuit has grant­ed relief in less than 5% of its cap­i­tal cases.[31]

Not sur­pris­ing­ly, giv­en the polit­i­cal pres­sures they face, judges are far more like­ly than juries to impose the death penal­ty. This has long been the case and the recent expe­ri­ence of judi­cial over­rides con­firms it. -Justice John Paul Stevens[32]

Political pres­sure on judges regard­ing death penal­ty deci­sions is most keen­ly felt when the judge, rather than a jury, makes the ulti­mate deci­sion on a life or death sen­tence. In nine death penal­ty states, judges deter­mine whether a defen­dant is to receive a death sen­tence. In eight of these nine states, the judges are sub­ject to elec­tions to retain their positions.[33]

In four of the states where the judge makes the deci­sion on sen­tenc­ing, a jury first rec­om­mends a sen­tence, there­by giv­ing an indi­ca­tion of what the cit­i­zens clos­est to the evi­dence believe is an appro­pri­ate sen­tence. This jury rec­om­men­da­tion, how­ev­er, can be over­rid­den by the judge. Not sur­pris­ing­ly, elect­ed judges pre­dom­i­nant­ly over­turn life rec­om­men­da­tions and impose death; rarely do they reject a jury’s vote for a death sen­tence and replace it with a life sen­tence. In Florida, Alabama and Indiana, where judges are sub­ject to re-elec­tion, they have imposed death sen­tences in 189 cas­es in which the juries had first rec­om­mend­ed life. Judges reversed death rec­om­men­da­tions in only 60 cases.[34] In Alabama alone, elect­ed judges over­turned rec­om­men­da­tions of life sen­tences and imposed death sen­tences more than ten times as often as they reject­ed rec­om­men­da­tions of death. The only excep­tion to this trend has been in Delaware, where the judges are not sub­ject to elec­tion. All sev­en of their jury over­rides have been in favor of life sentences.[35]

The prac­tice of judges dis­card­ing jury rec­om­men­da­tions with­out even hav­ing to explain their actions was brought before the Supreme Court in Harris v. Alabama.[36] The Justices upheld the prac­tice over the dis­sent of Justice John Paul Stevens. He rec­og­nized that elect­ed judges are sub­ject to the increas­ing pub­lic cries for vengeance. He warned that judges with their eye on the next elec­tion are vul­ner­a­ble to the same polit­i­cal pres­sure which make vir­tu­al­ly every politi­cian want to appear tough on crime. When these judges are giv­en the author­i­ty to throw out a jury’s life sen­tence rec­om­men­da­tion and replace it with the death penal­ty, it dis­torts the checks on judi­cial pow­er so care­ful­ly woven into our sys­tem of gov­ern­ment. Justice Stevens wrote:

Not sur­pris­ing­ly, giv­en the polit­i­cal pres­sures they face, judges are far more like­ly than juries to impose the death penal­ty. This has long been the case and the recent expe­ri­ence of judi­cial over­rides con­firms it.[37]

In dis­cussing why elect­ed judges may favor the death penal­ty, Justice Stevens point­ed to the ​“high­er author­i­ty” of political pressure:

The ​“high­er author­i­ty” to whom present-day cap­i­tal judges may be ​“too respon­sive” is a polit­i­cal cli­mate in which judges who cov­et high­er office – or who mere­ly wish to remain judges – must con­stant­ly pro­fess their feal­ty to the death penal­ty .… The dan­ger that they will bend to polit­i­cal pres­sures when pro­nounc­ing sen­tence in high­ly pub­li­cized cap­i­tal cas­es is the same dan­ger con­front­ed by judges behold­en to King George III.[38]

A Noose Over the Courthouse Tree

In Florida, one judge known for politi­ciz­ing the death penal­ty was Judge William Lamar Rose. When the U.S. Supreme Court tem­porar­i­ly over­turned the death penal­ty in 1972, Judge Rose pub­licly protest­ed the deci­sion by sling­ing a noose over a tree limb on the cour­t­house lawn. When the death penal­ty came back to Florida he was hand­ed the dis­cre­tion to use that noose despite a jury’s vote for life. He quick­ly to over­turned a jury’s unan­i­mous life rec­om­men­da­tion for Doug McCray, a for­mer hon­or stu­dent and star ath­lete who suf­fered from alco­hol-induced black­outs. Judge Rose sen­tenced McCray to death, a deci­sion lat­er reversed by the Florida Supreme Court.[39] The ​“high­er author­i­ty” to whom present-day cap­i­tal judges may be ​“too respon­sive” is a polit­i­cal cli­mate in which judges who cov­et high­er office – or who mere­ly wish to remain judges – must con­stant­ly pro­fess their feal­ty to the death penal­ty . -Justice Stevens

Another Florida judge, Richard Stanley is also an out­spo­ken sup­port­er of the death penal­ty. At the cap­i­tal tri­al of Raleigh Porter, the judge brought out his brass knuck­les and gun for all in the court to see.[40] When chal­lenged in a debate around the time of tri­al on whether he could pull the switch on the elec­tric chair he said: ​“Well, I will go along with that as long as they allow me, right after I pro­nounce the sen­tence, to reach down by my left leg and come up with my pis­tol and shoot ​‘em right between the eyes.”[41] But the jury, con­sid­er­ing the fact that Porter was young and that he had no sig­nif­i­cant crim­i­nal his­to­ry, vot­ed unan­i­mous­ly that he receive a life sen­tence. Judge Stanley prompt­ly ignored the jury’s rec­om­men­da­tion and imposed a sen­tence of death.

Apparently, Judge Stanley had made up his mind about the death sen­tence long before the penal­ty tri­al, the con­sti­tu­tion­al­ly required hear­ing at which evi­dence con­cern­ing the appro­pri­ate sen­tence is pre­sent­ed. Judge Stanley acknowl­edged his pre­judg­ment of the case: ​“When the judg­ment was brought out by the jury that he (Porter) was guilty, I knew in my own mind what the penal­ty should be, and I sen­tenced him to it.”[42] Stanley has said he would make the same judg­ment of death if giv­en anoth­er chance today. ​“Very frankly,” he said when ques­tioned about the sen­tence, ​“I don’t give a damn about it.”[43] Well, I will go along with that as long as they allow me, right after I pro­nounce the sen­tence, to reach down by my left leg and come up with my pis­tol and shoot ​‘em right between the eyes. -Judge Richard Stanley

Judge Stanley’s court clerk recent­ly tes­ti­fied that the judge had indi­cat­ed he intend­ed to sen­tence Porter to death even before Porter was found guilty. The clerk, Jerry Beck, has stat­ed that Judge Stanley had Porter’s tri­al moved to Glades County because, accord­ing to Judge Stanley: “[W]e had good, fair-mind­ed peo­ple here who would … con­sid­er the evi­dence and then con­vict the son of a bitch.” ​“Then,” the judge told Beck, ​“he would send Porter to the chair.”[44] This con­ver­sa­tion between Beck and Judge Stanley occurred before Porter’s tri­al. These rev­e­la­tions have result­ed in a stay of Porter’s exe­cu­tion and a deci­sion regard­ing a re-tri­al is pending.

Sometimes inno­cent defen­dants are caught up in the zeal­ous­ness of the judge to impose a death sen­tence. Walter McMillian had been placed on death row in Alabama even before his tri­al. He was a black man accused of mur­der­ing a well-liked young white woman. McMillian was already unpop­u­lar because he was dat­ing a dif­fer­ent white woman. After the mur­der had gone unsolved for months, the police con­vinced some wit­ness­es to tes­ti­fy against McMillian. Ironically, the tri­al occurred in Monroeville, the home­town of Harper Lee and the set­ting of her famous nov­el about racial injus­tice, ​“To Kill A Mockingbird.” Through his arrest and tri­al, McMillian main­tained his inno­cence. The evi­dence against him was weak. The jury con­vict­ed him of mur­der, but giv­en the lack of phys­i­cal evi­dence, they rec­om­mend­ed a life sentence.[45] But the judge, Robert E. Lee Key, had the ulti­mate deci­sion on sentencing.

Judge Key is a native of Alabama whose great-grand­fa­ther had owned a plan­ta­tion and thir­ty slaves. His grand­fa­ther had served in the Confederate Army. When McMillian’s life was placed in Key’s hands, he reject­ed the jury’s cau­tion in this racial­ly charged case and declared, ​“The only appro­pri­ate sen­tence is death by electrocution.”[46] Six years lat­er the key wit­ness­es from the tri­al admit­ted that they had lied. In their zeal to solve this trou­bling mur­der, the pros­e­cu­tion had focused on the wrong man and the judge over­ruled the jury and sen­tenced him to die. But for the extra­or­di­nary inter­ven­tion of the Alabama Resource Center in show­ing his inno­cence, he would have been executed.

It is impos­si­ble to know why Judge Key act­ed as he did, since the law does not require any expla­na­tion in over­rid­ing the jury. But when a black man is con­vict­ed of killing a young white woman in a small, out­raged south­ern town, and the judge, who is sub­ject to elec­tion, is giv­en the pow­er to make a strong polit­i­cal state­ment through his sen­tenc­ing, there is great dan­ger of improp­er influ­ence. When a black man is con­vict­ed of killing a young white woman in a small, out­raged south­ern town, and the judge, who is sub­ject to elec­tion, is giv­en the pow­er to make a strong polit­i­cal state­ment through his sen­tenc­ing, there is great dan­ger of improper influence. 

The Alabama judge who has most often over­rid­den jury rec­om­men­da­tions for life sen­tences is Judge Braxton Kittrell. He recent­ly turned aside a jury rec­om­men­da­tion for a life with­out parole sen­tence for Michael Shawn Barnes. Barnes was 17 years old at the time of his crime, is bor­der­line men­tal­ly retard­ed, and suf­fers from men­tal ill­ness. Even some of the vic­tims’ fam­i­ly mem­bers object­ed to a death sen­tence. Nevertheless, Judge Kittrell took out his full fury on Michael Barnes in reject­ing the jury’s deci­sion for mer­cy: ​“You are vicious, and you are a cold-blood­ed mur­der­er,” he said at sen­tenc­ing. ​“You are enti­tled to just as much mer­cy from this court as you showed your victims.”[47]

Judge Robert McGregor of Seminole County, Florida, dis­re­gard­ed an uncer­tain jury’s rec­om­men­da­tion of a life sen­tence for Joseph Spaziano and sen­tenced him to death. The jury had con­sid­er­able trou­ble reach­ing a guilty ver­dict in the case. The key wit­ness against Spaziano was a drug-addict­ed teenag­er aim­ing to please the police to help his own case. The wit­ness had to be hyp­no­tized and guid­ed in ​“remem­ber­ing” a con­ver­sa­tion with Spaziano about the loca­tion of the vic­tim’s body. After a dif­fi­cult debate about the evi­dence, the jury twice told the judge they were dead­locked. The judge gave them a ​“dyna­mite charge” instruc­tion, essen­tial­ly telling them they had to reach a ver­dict. They final­ly returned a guilty ver­dict, but per­haps because of their uncer­tain­ty they quick­ly rec­om­mend­ed a life sen­tence for Spaziano.[48]

Despite the ques­tion­able reliance on a hyp­no­tized wit­ness (a reliance which is no longer allowed in Florida courts), Judge McGregor over­ruled the jury and imposed a death sen­tence. He was re-elect­ed as judge and con­tin­ued to serve for twen­ty years while Spaziano sat on death row. In February, 1996, after an admis­sion by the hyp­no­tized teenage wit­ness that he had made up his sto­ry about being shown the vic­tim’s body, Spaziano’s con­vic­tion was over­turned. Spaziano came close to exe­cu­tion on at least five occa­sions. Now he will either receive a new tri­al or be freed from death row.[49] While Spaziano was seek­ing a new tri­al, Judge McGregor offered to come back from his retired sta­tus to hear the case, despite the fact that he had made recent com­ments to the press about Spaziano’s guilt.[50]

Judging in a Pro-Execution Climate

Even where the ulti­mate deci­sion about the death sen­tence is in the hands of a jury, the pre­sid­ing judge can influ­ence the out­come in a vari­ety of ways. Often the judge decides who is to be appoint­ed to defend an indi­gent defen­dant, how much the attor­ney will be paid, and how much will be allowed for the experts crit­i­cal to a cap­i­tal case defense. By appoint­ing attor­neys who will put up only an ema­ci­at­ed defense of their client, who will sub­mit few pre­tri­al motions, who will make few requests for experts, inves­ti­ga­tors and oth­er resources, a judge can seal a defen­dan­t’s fate with­out even rul­ing against the defen­dant at tri­al. Some attor­neys with dis­mal records get appoint­ed again and again in cap­i­tal cas­es, while oth­ers who are known for their vig­or­ous defense are excluded.

In Houston, Texas, judges appoint attor­neys like Ron Mock, despite his fail­ing record of hav­ing 12 of his 15 cap­i­tal case clients get the death penal­ty, or Joe Frank Cannon, who boast­ed of hur­ry­ing through his tri­als ​“like greased light­ning.” Ten of his clients have been sen­tenced to death – not sur­pris­ing giv­en that Cannon has been known to fall asleep dur­ing trial.[51] Judge William Harmon stat­ed to the defen­dant dur­ing tri­al that “[h]e was doing God’s work to see that (the defen­dant) was executed.” 

Other Texas judges have expressed out­right dis­dain for rudi­men­ta­ry due process in death penal­ty cas­es. Judge William Harmon, a for­mer pros­e­cu­tor, dur­ing jury selec­tion stat­ed to the defen­dant that “[h]e was doing God’s work to see that (the defen­dant) was executed.”[52] The same judge taped a pho­to­graph of the ​“hang­ing saloon” of the infa­mous Texas judge, Roy Bean, in front of his bench in full view of the jurors. In mak­ing rul­ings dur­ing the tri­al, Harmon repeat­ed­ly referred to the con­ser­v­a­tive Texas Court of Criminal Appeals as ​“lib­er­al bas­tards” and ​“idiots.”[53] Another Texas judge, John Martin, set the exe­cu­tion date of a defen­dant on his clerk’s birth­day as a ​“present.” Still anoth­er judge insist­ed on cal­lous­ly sign­ing his death war­rants with ​“smi­ley faces.”[54]

Ignoring the com­plex­i­ties of death penal­ty cas­es and court back­logs caused by oth­er fac­tors, some groups attack more care­ful judges as the root of their prob­lems. Crime Victims United in California, for exam­ple, plans to use its polit­i­cal action com­mit­tee funds this year to oust judges who take ​“too long” to start death penal­ty tri­als: ​“The judges should say, ​‘This is it. Be ready to start and let’s get to it,’ ” said Harriett Solarno who leads the group.[55]

Judges, and those seek­ing to be judges, are sen­si­tive to these veiled threats to their remain­ing in office. This is reflect­ed in their elec­tion cam­paigns. In the infor­ma­tion sup­plied by the can­di­dates for a supe­ri­or court judge­ship in California, John Quatman list­ed as one of his pri­ma­ry qual­i­fi­ca­tions the num­ber of ​“killers” he had sent to death row as a prosecutor.[56] Other can­di­dates, like Judge Bob Austin in Alabama or Louisiana Supreme Court Justice Jack Watson, promi­nent­ly men­tion their tough­ness on the death penal­ty in their cam­paign lit­er­a­ture. Another Alabama judge, Mike McCormick, proud­ly pro­claims that he is, indeed, ​“too tough on criminals.”[57] In Texas, Rene Haas, a can­di­date for the state Supreme Court, adver­tised her ​“strong sup­port for the death penal­ty,” even though the Texas Supreme Court does not han­dle any crim­i­nal appeals.[58]

Judge Austin’s cam­paign par­tic­u­lar­ly high­lights the con­flict of inter­est which Justice Stevens warned about when he wrote: ​“A cam­paign promise to ​‘be tough on crime,’ or to ​‘enforce the death penal­ty,’ is evi­dence of bias that should dis­qual­i­fy a can­di­date from sit­ting in crim­i­nal cases.”[59] Austin was assigned the death penal­ty tri­al of Ricky Adkins two weeks before the elec­tion for the cir­cuit court judge­ship for which he was a can­di­date. Austin refused to con­tin­ue the case even though he was run­ning a ​“law and order” cam­paign, refused to dis­qual­i­fy him­self, and refused a request for a change of venue. All these sto­ries made front page news just before the elec­tion. Austin presided over the tri­al, and Adkins was con­vict­ed in short order. Austin won the judi­cial elec­tion and then imposed the death penal­ty on Adkins.[60]

“[T]he Democrat par­ty places far too much empha­sis on rep­re­sent­ing minori­ties … peo­ple who don’t want to work, and peo­ple with a skin that’s any col­or but white.”

–Press release of Judge Earl Blackwell while pre­sid­ing over a cap­i­tal case with a black defen­dant

In Missouri, Judge Earl Blackwell issued a signed press release relat­ed to his judi­cial elec­tion announc­ing his new affil­i­a­tion with the Republican Party while pre­sid­ing over a death penal­ty case against an unem­ployed African-American defen­dant. The press release stat­ed, in part:

• • [T]he Democrat par­ty places far too much empha­sis on rep­re­sent­ing minori­ties … peo­ple who dont’ (sic) want to work, and peo­ple with a skin that’s any col­or but white .… I believe the time has come for us to place more empha­sis and con­cern on the hard-work­ing tax­pay­ers in this coun­try … [the] major­i­ty group of our cit­i­zens seems to have been vir­tu­al­ly for­got­ten by the Democrat party.[

61]

The judge denied a motion to recuse him­self from the tri­al. The defen­dant, Brian Kinder, was con­vict­ed and sen­tenced to death.

Under the changes in fed­er­al review incor­po­rat­ed into the ​“Antiterrorism and Effective Death Penalty Act of 1996,” the deci­sions of elect­ed state judges will be giv­en even more weight than they are at present. Death row inmates will be severe­ly restrict­ed in obtain­ing review of their cas­es by inde­pen­dent fed­er­al judges, who are not sub­ject to elections.[62] Without the added incen­tive of close scruti­ny by fed­er­al judges of the con­sti­tu­tion­al­i­ty of the state pro­ceed­ings, it is quite pos­si­ble that state judges will be influ­enced even more by the pow­er of pol­i­tics and the next election.

I gave in to the pres­tige and pow­er, the things that went with my job. I knew what the Governor … want­ed: no rec­om­men­da­tion for clemen­cy in any death case. -Howard Marsellus, for­mer Chair of Louisiana Pardon Board[63]

Judges are not the only ones in elect­ed office for whom the death penal­ty offers polit­i­cal oppor­tu­ni­ties. Attorney gen­er­als, pros­e­cu­tors, and mem­bers of the state par­don boards can get caught up in this polit­i­cal com­pe­ti­tion, with dire consequences.

In Ohio, Attorney General Betty Montgomery recent­ly demon­strat­ed polit­i­cal brinkman­ship in death penal­ty pros­e­cu­tions. In January, 1996, death row inmate Robert Buell had not yet filed his first fed­er­al habeas cor­pus peti­tion. Almost all death row inmates seek such review, and Buell had filed a notice of intent to do so. Stays of exe­cu­tions are rou­tine­ly grant­ed, and attor­neys are appoint­ed for these impor­tant pro­ceed­ings. Nevertheless, the State of Ohio set Buell’s exe­cu­tion date, and a fed­er­al judge refused to grant a stay because the actu­al peti­tion had not yet been filed.[64]

The U.S. Court of Appeals for the Sixth Circuit did, how­ev­er, grant Buell a stay two days before his sched­uled exe­cu­tion so that this rou­tine fil­ing and review could take place. Attorney General Montgomery wait­ed to a few hours before exe­cu­tion to file an appeal to the U.S. Supreme Court to allow the exe­cu­tion to go for­ward, there­by delib­er­ate­ly cre­at­ing an eleventh hour cri­sis in which the whole state mobi­lized for its first exe­cu­tion in over 30 years.

Even though this was a case that had not yet been through the nor­mal review process, the Attorney General called an after­noon press con­fer­ence con­demn­ing the delay in exe­cu­tions. She admit­ted that the scram­bling defense attor­neys would almost cer­tain­ly be able to obtain a stay of exe­cu­tion. Nevertheless, she was will­ing to push the sys­tem to the break­ing point, tak­ing a chance with a man’s life, to make a political point.

To fur­ther height­en the dra­ma, Robert Buell was moved to the death house at the Lucasville pen­i­ten­tiary. The vic­tim’s fam­i­ly was also put on alert, await­ing what they thought was a pos­si­ble exe­cu­tion, their expec­ta­tions toyed with in a macabre dance of death. Protesters gath­ered out­side the prison gates.

A spokesman for the Attorney General showed lit­tle respect for due process or the psy­cho­log­i­cal effects of this brinkman­ship: ​“The guy deserves to be exe­cut­ed, so we have no con­cern about car­ry­ing out the sen­tence giv­en,” said Mark Weaver. He admit­ted, how­ev­er, that this push­ing for an exe­cu­tion was main­ly for show: ​“We rec­og­nize the real­i­ty of the sys­tem is such that he (Buell) will prob­a­bly be able to file fed­er­al appeals.”[65]

The pre­vi­ous Ohio Attorney General, Lee Fisher, had played this same dan­ger­ous ​“game of chick­en” with the fate of John Byrd in March, 1994. Byrd, too, had not had an oppor­tu­ni­ty for even a first fed­er­al review when the state went direct­ly to the U.S. Supreme Court to try to lift a stay of execution.[66] Byrd, like Buell, remains on death row in Ohio. In both cas­es, the pros­e­cu­tor lost the legal bat­tle, but still sent a polit­i­cal mes­sage: Ohio’s top law enforce­ment offi­cer is push­ing for the death penal­ty. Attorney General Montgomery admit­ted as much after the Supreme Court turned down her fab­ri­cat­ed appeal: ​“We did what we want­ed, and that’s to send a mes­sage that we will squeeze and slow down the gam­ing of the system.”[67]

After her January press con­fer­ence and staged prepa­ra­tion for exe­cu­tion, Attorney General Montgomery again played the death penal­ty card by becom­ing pub­licly involved in the state appeals process, some­thing none of her pre­de­ces­sors had done in the 16 years since Ohio’s resump­tion of cap­i­tal pun­ish­ment. She began call­ing indi­vid­ual pros­e­cu­tors, telling them that if they did­n’t have time to file respons­es to appeals in their cap­i­tal cas­es, she would be glad to do it for them.[68]

She also unveiled new leg­is­la­tion to speed Ohio’s exe­cu­tions. One sec­tion of the bill would dis­qual­i­fy any death penal­ty defense attor­ney from future appoint­ment to cap­i­tal tri­als if a court had ruled that he had been inef­fec­tive in a pre­vi­ous cap­i­tal case.[69] (No sim­i­lar sanc­tions applies to pros­e­cu­tors or judges who err.) This mea­sure would have the chill­ing effect of keep­ing cap­i­tal defense attor­neys from admit­ting they made a mis­take in a death case, an impor­tant part of mount­ing an appeal on this issue. Under the new leg­is­la­tion, if the attor­ney admits she erred in rep­re­sent­ing a for­mer client, she could lose part of her future livelihood.

Moreover, this whole attack on defense attor­neys was main­ly polit­i­cal. The Ohio Supreme Court Chief Justice, Thomas Moyer, called it ​“a solu­tion with­out a problem.”[70] While there have been instances of poor rep­re­sen­ta­tion in Ohio, no Ohio death penal­ty con­vic­tions have ulti­mate­ly been over­turned because of inef­fec­tive­ness of coun­sel since the death penal­ty was reinstated.[71] But pun­ish­ing death penal­ty lawyers plays well in an election.

In Pennsylvania, anoth­er case of high stakes manip­u­la­tion of the death penal­ty actu­al­ly did result in the pre­ma­ture exe­cu­tion of an inmate. Leon Moser, a for­mer men­tal patient, appar­ent­ly want­ed to be exe­cut­ed, but it was not clear that he was men­tal­ly com­pe­tent to make that deci­sion. A fed­er­al judge ordered a com­pe­ten­cy hear­ing and stayed the exe­cu­tion. That stay was appealed by the state’s Attorney General and was lift­ed by a high­er court, even though the judge’s order for the com­pe­ten­cy hear­ing remained. The state pushed ahead with the exe­cu­tion before the sched­uled com­pe­ten­cy hearing.[72]

As the exe­cu­tion approached, the fed­er­al judge called the state’s attor­ney to see if there was a cel­lu­lar phone at the prison. He want­ed to inter­view Moser by phone to get some idea of Moser’s men­tal state. He was told there was no cel­lu­lar phone, which was lit­er­al­ly true. He was not told, how­ev­er, that there was a stan­dard phone in the exe­cu­tion cham­ber. By the time the judge was able to get through to the cham­ber, the lethal chem­i­cals were already flow­ing into Moser, and it was too late.[73]

No Pardon for Anyone

This is the cli­mate in which the death penal­ty is pushed beyond the rules. The per­va­sive pow­er of this pro-exe­cu­tion atmos­phere was under­lined by the exe­cu­tion of Timothy Baldwin in Louisiana. Howard Marsellus, a for­mer chair of Louisiana’s Pardon Board, was serv­ing on the Pardon Board at the time of Baldwin’s clemen­cy hear­ing. Marsellus described his strong reser­va­tions about Baldwin’s guilt and relayed his con­cerns to the Governor:

When we left the [Pardon Board] hear­ing and went behind closed doors to decide Baldwin’s fate, I just could­n’t con­vince myself that the man was real­ly guilty and deserved to die, and right there from the room where we were meet­ing I called the gov­er­nor’s office. His chief legal coun­sel, Bill Roberts, came to the phone, and when I told him about the case – I was upset, I was cry­ing – I said that if our job was to dis­pense mer­cy, that this seemed as clear a case for mer­cy that I had yet seen, but Roberts told me that I knew the gov­er­nor did not like to be con­front­ed with these cas­es and want­ed us to han­dle it.[74]

After the tele­phone con­ver­sa­tion, the Board ren­dered its unan­i­mous deci­sion uphold­ing Baldwin’s death sen­tence. Marsellus lat­er com­ment­ed, ​“I lacked the courage to vote on the basis of how I felt and what I believed. I gave in to the pres­tige and pow­er, the things that went with my job. I knew what the Governor, the man who had appoint­ed me, want­ed: no rec­om­men­da­tion for clemen­cy in any death case.”[75]

Executions At Any Price

Although gov­ern­ment fru­gal­i­ty usu­al­ly makes for good cam­paign pitch­es, when it comes to the death penal­ty that tack is aban­doned. In Texas, death penal­ty cas­es cost over $2 mil­lion apiece,[76] and the state has over 400 peo­ple on death row. Almost a third of Texas’s death row comes from Houston, where chief pros­e­cu­tor Johnny Holmes says that cost and time are not fac­tors he wor­ries about in pur­su­ing the death penalty.[77]

In California, which has just come out of an eco­nom­ic reces­sion, the Governor is now ask­ing for an expen­di­ture of an addi­tion­al $23 mil­lion per year to speed up executions.[78] This extra expense comes on top of the esti­mat­ed addi­tion­al $90 mil­lion per year which the state is already spend­ing to have a death penalty.[79]

California’s Attorney General cam­paigned for years for Congress to short­en the fed­er­al review process in death penal­ty cas­es. Ironically, when Congress final­ly did so in April, 1996, California’s sys­tem of pro­vid­ing lawyers for death row inmates did not even meet the min­i­mal cri­te­ria required by Congress for states to take advan­tage of the speed­i­er process.[80]

Politics not only inter­feres with the fair admin­is­tra­tion of the jus­tice sys­tem, it some­times ends up slow­ing the pace as well. Last year, Texas jumped on the band­wag­on of states try­ing to speed up their exe­cu­tions. Cutting the appeals process was easy, but sup­ply­ing the funds to pro­vide even a min­i­mum of rep­re­sen­ta­tion so that the appeals could be com­plet­ed proved impossible.

Last year, Texas exe­cut­ed 19 peo­ple. This year there have been only 3 exe­cu­tions (two of whom were ​“vol­un­teers”) because the state leg­is­la­ture cur­tailed the appeals process but cre­at­ed a legal cri­sis which the courts have not yet resolved. Since the leg­is­la­ture did not pro­vide any­where near the nec­es­sary mon­ey for attor­neys to bring the appeals allowed, coun­ties are being told to find their own mon­ey for the appeals. Even the pros­e­cu­tors are crit­i­cal of the leg­is­la­ture’s ignor­ing the prob­lem. ​“They want to have a death penal­ty with­out pay­ing for a death penal­ty,” said Bexar County Assistant District Attorney Ed Shaughnessy.[81]

In Georgia, where some coun­ties have been pushed to the brink of bank­rupt­cy because of expen­sive cap­i­tal cas­es, Cobb County District Attorney Tom Charron announced he will seek the death penal­ty against Fred Tokars for the mur­der of his wife. Tokars has already been con­vict­ed of this crime under a fed­er­al pros­e­cu­tion and is cur­rent­ly serv­ing four life terms with­out the pos­si­bil­i­ty of parole. It is expect­ed that the tri­al of Tokars will cost tax­pay­ers more than a mil­lion dol­lars, to pur­sue a defen­dant who has already been tried and con­vict­ed of same crime, and who will nev­er be out of prison again.[82] However, regard­less of the out­come, there are polit­i­cal advan­tages in just seek­ing the death penal­ty in a high­ly pub­li­cized murder case.

The police offi­cers’ and the pros­e­cu­tors’ actions described in these find­ings were inten­tion­al, were done in bad faith, and are out­ra­geous. -Federal Judge Kenneth Hoyt[83]

A pros­e­cu­tor has enor­mous dis­cre­tion to pur­sue either the death penal­ty or a life sen­tence; to accept or refuse a plea bar­gain; and to decide whether to put the full strength of the gov­ern­men­t’s pow­er behind a par­tic­u­lar pros­e­cu­tion. The elect­ed pros­e­cu­tor is aware that a death penal­ty tri­al will be giv­en height­ened media cov­er­age. If an elec­tion is loom­ing, a death penal­ty case pro­vides a tempt­ing oppor­tu­ni­ty to gar­ner free adver­tis­ing and to por­tray an image of toughness.

Generally, this broad dis­cre­tion is unre­view­able. As long as a case fits the min­i­mum cri­te­ria, courts can­not sec­ond guess a pros­e­cu­tor’s deci­sion to make a par­tic­u­lar mur­der case into a death penal­ty case. Moreover, once the deci­sion to seek the death penal­ty is pub­licly announced, it is very dif­fi­cult to reverse the process, even in the face of strong evi­dence of innocence.

A Notch On Their Guns

Some pros­e­cu­tors brag about their death penal­ty con­vic­tions as if they were notch­es on their guns. They cam­paign for office, know­ing that it is almost impos­si­ble to appear ​“too tough” on crime. For exam­ple, Bob Macy, the District Attorney of Oklahoma City, proud­ly lists as the first item in his cam­paign lit­er­a­ture that he has sent 44 mur­der­ers to death row.[84]

Johnny Holmes, the District Attorney of Harris County, Texas, has made a career out of the death penal­ty. He has sent more peo­ple to the exe­cu­tion cham­ber since 1976 than any state, except Texas itself.[85] In the D.A.‘s office is a chart enti­tled the ​“Silver Needle Society,” which lists all those from Harris County who have been exe­cut­ed by lethal injection.[86]

However, a recent death penal­ty deci­sion in fed­er­al court sharply crit­i­cized the reck­less atti­tude of some of the pros­e­cu­tors in Holmes’s office. In over­turn­ing the cap­i­tal con­vic­tion of Ricardo Guerra of Houston, Judge Kenneth Hoyt cas­ti­gat­ed the police and pros­e­cu­tors: ​“The police offi­cers’ and the pros­e­cu­tors’ actions described in these find­ings were inten­tion­al, were done in bad faith, and are outrageous.”[87] He par­tic­u­lar­ly point­ed to the polit­i­cal side of this pros­e­cu­to­r­i­al mis­con­duct, which he said ​“was designed and cal­cu­lat­ed to obtain a con­vic­tion and anoth­er ​‘notch in their guns’.…”[88]

Thanks large­ly to for­mer Georgia District Attorney (now judge) Douglas Pullen’s cap­i­tal pros­e­cu­tions, the Chattahoochee Judicial District sent more peo­ple to death row than any oth­er dis­trict in the state. But Pullen bent the rules to get those con­vic­tions. Pullen’s office was recent­ly found to be improp­er­ly involved in assign­ing crim­i­nal cas­es to judges in Columbus, Georgia.[89] The cap­i­tal cas­es were assigned to two for­mer dis­trict attor­neys who had pre­ced­ed Pullen in office. Also, while Pullen was a pros­e­cu­tor in Columbus, that office used over 83% of its dis­cre­tionary jury strikes in cap­i­tal cas­es against African-Americans.[90] When the Chief Justice of Georgia’s Supreme Court announced a plan to pro­vide more effec­tive rep­re­sen­ta­tion for poor peo­ple fac­ing the death penal­ty, Pullen denounced the plan as an attack on the death penalty.[91]

Pullen has con­tin­ued his aggres­sive pro­mo­tion of the death penal­ty since becom­ing a judge. In an inter­view before the Atlanta Olympics, Judge Pullen remarked: “[I]f you hurt one of my peo­ple, I’m going to come after you. Life impris­on­ment with­out parole is a weak sis­ter. A hor­ri­bly weak sister.”[92]

As pros­e­cu­tor, Pullen sought and obtained the death penal­ty against Jerome Bowden, a men­tal­ly retard­ed black defen­dant. Those with men­tal retar­da­tion are like­ly to be of lit­tle help in their own defense, fre­quent­ly express inap­pro­pri­ate emo­tions dur­ing tri­al, and are often extreme­ly coop­er­a­tive with the author­i­ties pur­su­ing their pros­e­cu­tion, thus mak­ing a death penal­ty con­vic­tion more like­ly. The exe­cu­tion of Jerome Bowden, who had an IQ of 59, was such an embar­rass­ment to Georgia that short­ly there­after it passed a law exclud­ing those with men­tal retar­da­tion from the death penal­ty. But Pullen said he would seek the death penal­ty again if faced with the same choice.[93]

Pullen was recent­ly reward­ed with a new Superior Court judge­ship in Georgia. Two of the four Superior Court judges in the Chattahoochee Judicial District, Mullins Whisnant and William Smith, also obtained their seats on the bench after try­ing high-pro­file death penal­ty cas­es in the same pros­e­cu­tor’s office. In his cam­paign for judge­ship, Smith received his largest con­tri­bu­tion, $5,000, from the father of a mur­der vic­tim in a case in which Smith had won the death penalty.[94]

In Kentucky, Commonwealth Attorney Ernest Jasmin made a name for him­self by obtain­ing a death sen­tence against the killer of two teenagers from Trinity High School. He then cam­paigned as the ​“Trinity Prosecutor,” tak­ing ads in the high school news­pa­per and cam­paign­ing with one of the vic­tims’ par­ents fre­quent­ly at his side.[95]

In Nebraska, Attorney General Don Stenberg took the unusu­al step of attach­ing to his Supreme Court brief a per­son­al let­ter urg­ing the exe­cu­tion of Harold Otey, whom he described as a ​“vicious killer” who ​“still smirks at the fam­i­ly of the vic­tim .…”[96] While push­ing pub­licly for Otey’s death, Stenberg also sat as one of three deci­sion-mak­ers at Otey’s clemen­cy hear­ing as two of his staff pre­sent­ed the state’s ver­sion of the murder.

One Way Discretion

Prosecutors who blan­ket the courts with death penal­ty pros­e­cu­tions are rarely chal­lenged for their choic­es. State’s Attorney Sandra O’Connor of Baltimore County, Maryland, and District Attorney Lynne Abraham of Philadelphia, have said that it is their pol­i­cy to pur­sue the death penal­ty in every eli­gi­ble case.[97] But their respec­tive gov­er­nors are unlike­ly to sanc­tion them for abus­ing the law or being too aggres­sive in the use of the death penal­ty. However, when the Bronx (NY) District Attorney, Robert Johnson, hes­i­tat­ed to seek the death penal­ty in a high­ly pub­li­cized police killing, the Governor claimed this reflect­ed a blan­ket pol­i­cy vio­lat­ing death penal­ty law and quick­ly removed Johnson from pros­e­cut­ing the case.

Johnson has nev­er said unequiv­o­cal­ly that he would always refuse to seek the death penal­ty. But he believes that such pros­e­cu­tions con­tain an unten­able risk of exe­cut­ing the inno­cent. The New York law does not require seek­ing the death penal­ty, but rather gives that dis­cre­tion to the pros­e­cu­tor. Johnson had been over­whelm­ing­ly re-elect­ed by the peo­ple of the Bronx with full knowl­edge of his death penal­ty posi­tion. The Governor appoint­ed the state’s Attorney General, Dennis Vacco, a zeal­ous pro-death penal­ty advo­cate to pros­e­cute the case and to decide whether the death penal­ty would be sought for the mur­der of Officer Kevin Gillespie.[98] Not sur­pris­ing­ly, Vacco opt­ed to seek a death sentence.

Tragically, the case end­ed before the defen­dant, Angel Diaz, could even be tried. He was found hung, appar­ent­ly by sui­cide, in his cell on Rikers Island. Governor Pataki’s cal­lous remark after hear­ing that some­one pre­sumed inno­cent and in the state’s care had been found dead was: ​“Angel Diaz was a vio­lent crim­i­nal; he died the same way. I mourn the death of Kevin Gillespie.”[99]

In Illinois, Assistant Attorney General Mary Kenney resigned because she decid­ed that she could not pur­sue the exe­cu­tion of an inno­cent man. The Attorney General want­ed her to chal­lenge the appeals of Rolando Cruz, despite the fact that anoth­er man had con­fessed to the crime and that con­sid­er­able evi­dence point­ed to Cruz’s innocence.[100] Kenney relin­quished her job, while James Ryan, who had twice pros­e­cut­ed Cruz in the face of over­whelm­ing evi­dence of his inno­cence, went on to become Illinois’s Attorney General. Later, Rolando Cruz’s con­vic­tion was over­turned by the Illinois Supreme Court, and he was acquit­ted at retrial.[101] (His co-defen­dant, Alejandro Hernandez, who had also been sen­tenced to death, was like­wise cleared and released.)

The polit­i­cal rhetoric around the crime issue obscures the chances for ratio­nal debate. The hyper­bole sur­round­ing the death penal­ty knows few bounds. Newt Gingrich, orig­i­nal spon­sor of ​“The Effective Death Penalty Act” in the Contract With America, recent­ly went back to Georgia cam­paign­ing for a manda­to­ry death penal­ty for drug smug­glers. Anyone con­vict­ed of bring­ing a com­mer­cial quan­ti­ty of ille­gal drugs into the U.S. would be exe­cut­ed. Gingrich envi­sioned mass exe­cu­tions of 35 peo­ple at one time, to make an exam­ple. ​“I have made the deci­sion that I love our chil­dren enough that we will kill you if you do this,”[102] he said at a fund-rais­ing din­ner in Athens, Georgia. To make things sim­pler, he would also elim­i­nate most of the appeals in such cases.

Governor Gary Johnson of New Mexico recent­ly pro­posed that chil­dren as young as 13 should be eli­gi­ble for exe­cu­tion. He also includ­ed a veiled warn­ing against judges who hes­i­tate on the death penal­ty, say­ing that the death penal­ty deci­sion is one for judges to make ​“and for the elec­torate to decide if they like what the judges are doing.”[103] I have made the deci­sion that I love our chil­dren enough that we will kill you if you do this. -Newt Gingrich, propos­ing the death penal­ty for drug smug­gling

Some politi­cians use the death penal­ty to attack their oppo­nent even when that oppo­nent stri­dent­ly sup­ports it. Attorney General Jeff Sessions of Alabama is well known for his endorse­ment of cap­i­tal pun­ish­ment. But Republican Senate can­di­date Sid McDonald saw an open­ing to attack Sessions because of Sessions’s agree­ment with a clear­ly cor­rect rul­ing by the Alabama Court of Criminal Appeals in a death case. The court ruled that the tri­al court had sen­tenced a man to death using cri­te­ria that sim­ply did not exist in the state’s death penal­ty law. This unan­i­mous rul­ing obvi­ous­ly required over­turn­ing the defen­dan­t’s death sen­tence. To McDonald, how­ev­er, the law was irrel­e­vant: ​“Murder is mur­der,” he said in his cam­paign ad attack­ing Sessions. ​“No legal tech­ni­cal­i­ty can change that. As sen­a­tor, I’ll fight for vic­tims’ rights, not crim­i­nal rights.”[104]

In Nevada, Attorney General Frankie Sue Del Papa accused the U.S. Court of Appeals of being ​“biased against cap­i­tal punishment”[105] because the review of her state’s cas­es was tak­ing too long. She did not men­tion, how­ev­er, that it was her office that was guilty for at least some of the delays by fail­ing to respond to peti­tions. Judge Michael Griffin not­ed that in the case of Thomas Nevius, for exam­ple, ​“the attor­ney gen­er­al’s office did noth­ing” from 1989 until 1994.[106] And if we get a few inno­cent peo­ple, fine and dandy with me. I’ll take the per­cent­age, folks, because I don’t want to put my chil­dren at risk any­more. -Rep. Leslie Johnson

Dan Lungren, the Attorney General of California, uses the death penal­ty as a way of rais­ing funds for his cam­paigns and trav­els to Washington, DC to urge leg­isla­tive changes to short­en the appeals process in cap­i­tal cas­es. His fundrais­ing let­ter, on offi­cial state let­ter­head, calls the appeals process a ​“loop­hole in the crim­i­nal jus­tice system.”[107] Lungren is so eager to get pub­lic­i­ty to show his sup­port for exe­cu­tions that he recent­ly issued a press release crit­i­ciz­ing state-fund­ed defense lawyers for bring­ing gifts of cook­ies and ten­nis shoes to a death row inmate. The press release was fac­tu­al­ly inac­cu­rate, but it demon­strat­ed Lungren’s fear that the defen­dant, who pre­vi­ous­ly had request­ed a quick exe­cu­tion, might decide to pur­sue the fed­er­al review to which he is enti­tled and slip out of the state’s grasp.[108]

South Carolina’s Attorney General, Charles Condon, has also used the death penal­ty to thrust him­self into nation­al pol­i­tics. Condon was one of the prin­ci­pal forces behind Congress’s with­draw­ing all fund­ing from the death penal­ty resource cen­ters. With one stroke, he man­aged to not only take away the resources avail­able to his oppo­nents in court, but he also became known as a cru­sad­er against death penal­ty appeals. The fact that such a dras­tic cut in resources for those fac­ing exe­cu­tion might actu­al­ly bog down the sys­tem and cost the gov­ern­ment more than the amounts grant­ed to the resource cen­ters did not stop Condon and oth­ers from scor­ing their polit­i­cal points at the expense of an order­ly sys­tem of justice.[109]

Politicians know the secret of ral­ly­ing sup­port for them­selves by fright­en­ing the pub­lic. In Arizona, state Representative Leslie Johnson (R‑Mesa) called for the death penal­ty for child moles­ters after a hor­ren­dous crime in Yuma. On the floor of the House, Johnson pro­posed the quick fix: ​“If we do away with these peo­ple, if we do have the death penal­ty and if you are a sex offend­er, you’re just out of here — dead, gone. And if we get a few inno­cent peo­ple, fine and dandy with me. I’ll take the per­cent­age, folks, because I don’t want to put my chil­dren at risk anymore.”[110]

Because of the politi­ciza­tion of the crime issue, there has been a sys­tem­at­ic exclu­sion of those who oppose the death penal­ty at many lev­els of gov­ern­ment, par­tic­u­lar­ly the judi­cia­ry. One’s posi­tion on this sin­gle issue can trig­ger ostracism from pub­lic office, despite over­all high qual­i­fi­ca­tions. Many of America’s most respect­ed cit­i­zens, peo­ple like Martin Luther King, Jr., Justices William Brennan, Thurgood Marshall, and Harry Blackmun, would prob­a­bly not be appoint­ed to any fed­er­al court today. The judi­cia­ry, along with the realm of elect­ed offi­cials, are becom­ing almost com­plete­ly devoid of peo­ple who hold this minor­i­ty point of view. Even National Public Radio dropped a series of radio pro­grams from the per­spec­tive of a death row inmate after out­cries from Senator Robert Dole and some mem­bers of the law enforce­ment community.[111]

After the Willie Horton scare of 1988, Bill Clinton in 1992 made his will­ing­ness to exe­cute peo­ple crys­tal clear by leav­ing the cam­paign trail to pre­side over the lethal injec­tion of a severe­ly brain-dam­aged inmate in Arkansas. Since becom­ing President, he has sup­port­ed a huge expan­sion of the fed­er­al death penal­ty to six­ty offens­es, includ­ing some crimes in which no mur­der has occurred. He has signed into law a bud­get bill which with­drew all sup­port from the death penal­ty resource cen­ters, and sup­port­ed an ​“anti-ter­ror­ism” bill which may crip­ple access to the fed­er­al courts for those on death row.

Since the pro-death penal­ty plat­form has already been staked out by President Clinton, Bob Dole has tried to posi­tion him­self as the one in favor of even faster exe­cu­tions and even tougher judges. Using a pho­to oppor­tu­ni­ty in front of the nation’s largest death row in San Quentin, California, Dole called for the impeach­ment of fed­er­al Judge Harold Baer and for the accel­er­a­tion of exe­cu­tions. Not to be out­done on crime, Clinton’s spokesman quick­ly replied that the President, too, sup­port­ed dras­tic cuts in fed­er­al appeals for those on death row.[112]

The whole sub­ject of death penal­ty appeals has become an oppor­tu­ni­ty for polit­i­cal grand­stand­ing. The lat­est ver­sion of this manip­u­la­tion involved lin­ing up sur­vivors and fam­i­ly mem­bers from the Oklahoma City bomb­ing to drum up sup­port for cut­ting fed­er­al review of death penal­ty cas­es, under the guise of fight­ing terrorism.[113] When the stronger anti-ter­ror­ism pro­vi­sions of the pro­posed bill became too con­tro­ver­sial, they were dropped, and even pro­po­nents of the leg­is­la­tion admit­ted, ​“The death penal­ty is the essence of this bill.”[114]

What was left unsaid, how­ev­er, is that these changes in the habeas cor­pus law have noth­ing to do with ter­ror­ism. Furthermore, the Oklahoma City bomb­ing tri­al is a fed­er­al case and hence will nev­er involve fed­er­al courts review­ing state court deci­sions. Finally, thanks to a care­ful­ly orches­trat­ed cam­paign to push this leg­is­la­tion, the media has failed to report that some Oklahoma City bomb­ing rel­a­tives are opposed to this rush to execution.

The final step in the death penal­ty process is the con­sid­er­a­tion of clemen­cy by the gov­er­nor. However, because the process has become so politi­cized in recent years, clemen­cies have become extreme­ly rare. There has been only one com­mu­ta­tion in the entire coun­try in each of the last four years. Earlier in the cen­tu­ry, clemen­cies were giv­en in rough­ly 20% of cap­i­tal cases.[115] But recent­ly, few gov­er­nors have had the courage to grant even a sin­gle clemen­cy dur­ing their term in office.

Instead of clemen­cy, one of the most pop­u­lar tech­niques which pro-death penal­ty gov­er­nors have used in recent years is the arti­fi­cial accel­er­a­tion of death war­rants. For an elec­torate which has been made hun­gry for faster exe­cu­tions, the war­rant sign­ing scheme has sev­er­al advan­tages. First, it gives the appear­ance that the death penal­ty process is being speed­ed up. Second, it enables a gov­er­nor to numer­i­cal­ly com­pare him­self with his or her pre­de­ces­sor on a tough­ness scale. And third, when the death war­rants inevitably are not car­ried out at the same pace at which they are signed, the gov­er­nor can blame the courts or defense lawyers as the ​“real problem.”

This manip­u­la­tion of the crim­i­nal jus­tice sys­tem has more than polit­i­cal ram­i­fi­ca­tions. A death war­rant sends the legal sys­tem into a fren­zy. Stays of exe­cu­tion must be fought for, even before an appeal can be filed. Layers are added on to an already com­plex process. And if the num­ber of war­rants becomes exces­sive, there may not be attor­neys avail­able to han­dle the sud­den avalanche of lit­i­ga­tion. An unrep­re­sent­ed defen­dant could eas­i­ly fall through the cracks and be exe­cut­ed with­out legal rep­re­sen­ta­tion. In 1989, the Committee appoint­ed by Chief Justice Rehnquist to study death penal­ty appeals, strong­ly rec­om­mend­ed that such review ​“be free from the time pres­sure of an impend­ing exe­cu­tion and with the assis­tance of com­pe­tent coun­sel .…”[116]

Bob Martinez of Florida was a mas­ter at threat­en­ing exe­cu­tions, sign­ing 139 death war­rants in four years, twice the pace of his pre­de­ces­sor, Bob Graham, and many times the pace of the next gov­er­nor, Lawton Chiles. Martinez would sign five war­rants at a time, often out of chrono­log­i­cal order.[117] He cam­paigned in front of the image of a death row inmate he had sent to the elec­tric chair. However, exe­cu­tions pro­ceed­ed at about the same pace dur­ing all three gov­er­nors’ terms – it was only the pace of death war­rants that was accel­er­at­ed. Nevertheless, this process put enor­mous bur­dens on the courts and on those assigned to rep­re­sent the death row inmates.

Governor Tom Ridge of Pennsylvania also came into office with promis­es of accel­er­at­ing the death penal­ty. He has signed at least 41 death war­rants since becom­ing gov­er­nor in 1995.[118] There have been two exe­cu­tions in Pennsylvania, but both were of inmates who waived their appeals. Again, the war­rants cre­at­ed the impres­sion that Ridge is hard-nosed and suc­ceed­ed in over­whelm­ing the severe­ly strapped indi­gent defense sys­tem which has to respond to each of these execution threats.

Although crime has often been a sta­ple for polit­i­cal speech­es, the recent empha­sis on the death penal­ty inter­feres with the essen­tial impar­tial­i­ty of the jus­tice sys­tem. When judges who will decide whether a defen­dant is to live or die, and who even have the pow­er to reject the unan­i­mous vote of jurors, run for office by pro­claim­ing how tough they will be on crim­i­nals, fair­ness is threat­ened. When pros­e­cu­tors who will make key deci­sions on how often, and against whom, to seek the death penal­ty run for office on their cap­i­tal pun­ish­ment record, it invites abuse.

Politicians fan the flames of this spi­ral­ing effort to seek more death judg­ments and faster exe­cu­tions by mak­ing alle­giance to the death penal­ty a lit­mus test for pub­lic office. This sin­gle issue is exclud­ing high­ly qual­i­fied can­di­dates from seek­ing or obtain­ing office. It is becom­ing increas­ing­ly dif­fi­cult for a ratio­nal debate on the val­ue of cap­i­tal pun­ish­ment to take place, when the slight­est hes­i­ta­tion on the death penal­ty brands one as weak on crime. Ultimately, the death penal­ty com­pro­mis­es the integri­ty of the jus­tice sys­tem itself as indi­vid­ual rights are sac­ri­ficed in an effort to score political points.