The Death Penalty in 1998: Year End Report

The num­ber of exe­cu­tions in 1998 declined slight­ly from the record num­ber in 1997. As of December 18, there were 68 exe­cu­tions in the U.S., down from 74 peo­ple exe­cut­ed last year (no more are sched­uled this year). About half of the exe­cu­tions occurred in two states: Texas and Virginia. The total num­ber of exe­cu­tions in the U.S. since 1976 reached 500. The num­ber of peo­ple on death row again moved to a record high and now stands at 3,517, though the Bureau of Justice Statistics report­ed a 19% drop in new death sen­tences in 1997. 

The year was marked by unusu­al events which prompt­ed crit­i­cism of the death penal­ty from new sources. Judges, for­mer pros­e­cu­tors, con­ser­v­a­tive reli­gious lead­ers and inter­na­tion­al diplo­mats all found fault with cap­i­tal pun­ish­ment in the U.S. this year. And the prospect of inno­cent peo­ple being sent to their deaths was dra­mat­i­cal­ly brought to the pub­lic’s atten­tion by a nation­al gath­er­ing of those who have been freed from death row. 

Eighty-one per­cent of the exe­cu­tions this year occurred in the South. Texas again led the coun­try with 20 exe­cu­tions. Virginia had the sec­ond largest num­ber with 13. On a per capi­ta basis, Virginia sur­passed Texas, even though its death row is only one-tenth the size of Texas’s. More than half (20) of the states with the death penal­ty, and the fed­er­al gov­ern­ment, had no exe­cu­tions this year.

Despite strong oppo­si­tion from nation­al and inter­na­tion­al human rights lead­ers, three juve­nile offend­ers were exe­cut­ed this year, two in Texas and one in Virginia, the first such exe­cu­tions since 1993. Virtually all of the oth­er coun­tries in the world refrain from exe­cut­ing those who were under 18 at the time of their crime. Two men suf­fer­ing from men­tal retar­da­tion were exe­cut­ed this year. Four for­eign nation­als were also exe­cut­ed this year, three of whom chal­lenged that they were not informed of their rights under the Vienna Convention to con­sult with their con­sulate at the time of their arrest.

Race again played a deci­sive role in who lives and who dies. Of the 68 exe­cu­tions this year, only 11 (16%) involved the mur­der of a black vic­tim, even though blacks are the vic­tims in 50% of all mur­ders. The Death Penalty Information Center released a report based on an exhaus­tive sta­tis­ti­cal study of cap­i­tal cas­es in Philadelphia, which showed that for sim­i­lar crimes the odds of blacks receiv­ing the death penal­ty were four times greater than for any oth­er defen­dants. The report also revealed that 98% of the nation’s chief dis­trict attor­neys respon­si­ble for death penal­ty deci­sions are white, while only 1% are African American. Many mem­bers of the Congressional Black Caucus joined in con­demn­ing the dis­crim­i­na­to­ry appli­ca­tion of the death penalty. 

Although some states took efforts to improve their sys­tem of cap­i­tal rep­re­sen­ta­tion for the poor, the over­all pic­ture remained dis­mal. In almost three years, not a sin­gle state has been qual­i­fied as pro­vid­ing ade­quate rep­re­sen­ta­tion for death row inmates under the Anti-Terrorism and Effective Death Penalty Act of 1996. This law pro­vides for a faster appeals process in exchange for improved rep­re­sen­ta­tion, but states have not matched their pro­fessed desire for stream­lined fed­er­al review with a com­mit­ment of resources to assure a thor­ough review. In Alabama, the leg­is­la­ture approved rais­ing the abysmal­ly low fee of $20 per hour for tri­al prepa­ra­tion in cap­i­tal cas­es, but the mea­sure was vetoed by Governor Fob James. In Mississippi, the state Supreme Court declared that indi­gent death row inmates are enti­tled to rep­re­sen­ta­tion, but the leg­is­la­ture has not approved a sin­gle dol­lar to imple­ment that ruling.

The exe­cu­tion of a woman in February brought the most atten­tion to the death penal­ty this year. Karla Faye Tucker was the first woman exe­cut­ed in the U.S. in almost 14 years. (A sec­ond woman, Judi Buenoano, was elec­tro­cut­ed a month lat­er in Florida.) Despite pleas for mer­cy from the Pope, Rev. Pat Robertson, fam­i­ly mem­bers of the vic­tims and oth­er world lead­ers, Texas Governor George Bush declined to stay the exe­cu­tion. A poll in Texas tak­en short­ly after the exe­cu­tion showed a drop of 18 per­cent­age points in sup­port for the death penalty. 

This exe­cu­tion prompt­ed a re-eval­u­a­tion of Texas’s clemen­cy process, a pro­pos­al to adopt a sen­tenc­ing alter­na­tive of life-with­out-parole in Texas, and a wide­spread exam­i­na­tion of whether the death penal­ty makes sense when non-threat­en­ing indi­vid­u­als are exe­cut­ed years after their crime. For many peo­ple the image of the death penal­ty now bears the face of Karla Faye Tucker, and it is a disturbing image.

In addi­tion to the calls for mer­cy from death penal­ty sup­port­ers such as Pat Robertson and Jerry Falwell, a num­ber of oth­er new voic­es emerged this year: 

• In Florida, the Chief Justice of the Supreme Court and for­mer homi­cide pros­e­cu­tor, Gerald Kogan, said: ​“It does­n’t make any dif­fer­ence if you are in favor of cap­i­tal pun­ish­ment or if you are opposed to cap­i­tal pun­ish­ment. The fact of the mat­ter is that as a viable penal­ty, cap­i­tal pun­ish­ment does not work at this time and has not worked in the State of Florida for many, many, many years.” After not­ing the enor­mous amount of time the courts devote to these cas­es, and the high finan­cial costs of the death penal­ty com­pared to life with­out parole sen­tences, he said, ​“We have to ask our­selves if it is not time for us to rethink whether or not cap­i­tal pun­ish­ment is a viable rem­e­dy for the crime of first-degree mur­der.“1
• In Illinois, Justice Moses Harrison II of the state’s Supreme Court con­clud­ed that the high risk of exe­cut­ing the inno­cent under­mines the entire jus­tice sys­tem: ​“Despite the courts’ efforts to fash­ion a death penal­ty scheme that is just, fair, and reli­able, the sys­tem is not work­ing. Innocent peo­ple are being sen­tenced to death.… It is no answer to say that we are doing the best we can. If this is the best our state can do, we have no busi­ness send­ing peo­ple to their deaths.” 2
• Former U.S. Court of Appeals Judge Abner Mikva also found the death penal­ty to be fail­ing its test: ​“Despite many efforts to do so, it has proven almost impos­si­ble to quan­ti­fy the effi­ca­cy of cap­i­tal pun­ish­ment,” he wrote. ​“The main func­tion of the death penal­ty is to vent spleen against those who com­mit cer­tain crimes .…[result­ing] in harm to the jus­tice sys­tem that is not always appar­ent.” 3
• Judge Rudolph Gerber of the Arizona Court of Appeals changed his mind about the death penal­ty after years of obser­va­tion: ​“To sup­port the death penal­ty as sound social pol­i­cy strikes me as gross­ly mis­guid­ed. Not only does the death penal­ty not deter mur­der, it fos­ters a cul­ture of bru­tal­i­ty, risks inter­na­tion­al con­dem­na­tion, and trans­forms our coun­try into a bru­tal pari­ah.” 4
• In Virginia, for­mer Attorney General William Broaddus, who helped steer the state toward its promi­nence in exe­cu­tions, changed his mind and now oppos­es the death penal­ty: ​“There’s just no way I could con­clude that the way we do this makes any sense. I have come to con­clude that, in fact, we apply the death penal­ty in a very arbi­trary man­ner.” 5
• Former Texas Attorney General Jim Mattox pushed the Governor to one of the most unusu­al events in recent death penal­ty his­to­ry: a com­mu­ta­tion in Texas. Mattox’s inves­ti­ga­tion into the mul­ti­ple con­fes­sions of Henry Lee Lucas led him to con­clude that Lucas was about to be exe­cut­ed for a crime he did not com­mit. Lucas, who claimed to have killed 500 peo­ple, became the only per­son in the coun­try grant­ed clemen­cy this year. 
• Two of the promi­nent news­pa­pers in the lead­ing death penal­ty states edi­to­ri­al­ized against the way the death penal­ty is applied. The Virginian-Pilot6 The Dallas Morning News, in a series of edi­to­ri­als, decried the poor sys­tem of rep­re­sen­ta­tion offered defen­dants and called upon the state to stop the exe­cu­tion of the men­tal­ly impaired, which it called ​“point­less” and ​“immoral.” 7 changed its edi­to­r­i­al stance and now oppos­es the death penal­ty because ​“despite law­mak­ers’ and courts’ best efforts, deci­sions as to who dies and who lives hinge reg­u­lar­ly on mat­ters hav­ing lit­tle to do with guilt or inno­cence. All too fre­quent­ly, the deter­min­ing fac­tors are qual­i­ty of legal rep­re­sen­ta­tion, per­son­al wealth of the defen­dant, race of either the vic­tim or the alleged per­pe­tra­tor and even the pol­i­tics of those charged with prosecution.”

• For the first time, the International Court of Justice at the Hague asked that an exe­cu­tion in the U.S. be delayed, because a Paraguayan defen­dan­t’s rights under the Vienna Convention had been vio­lat­ed. The World Court’s request, along with a plea from Secretary of State Madeleine Albright, was reject­ed by the U.S. Supreme Court and the state of Virginia, and Angel Breard was exe­cut­ed on April 14. 
• A sim­i­lar bat­tle arose over the exe­cu­tion in Texas of Canadian cit­i­zen, Joseph Faulder. The Foreign Minister of Canada, Madeleine Albright, the UN High Commissioner for Human Rights, the President of the European Union, and Bishop Tutu of South Africa all called on Texas to stop this exe­cu­tion, but to no avail. A half hour before his exe­cu­tion, the U.S. Supreme Court grant­ed a stay. Not only was Faulder not informed of his con­sular rights, he also mer­it­ed clemen­cy because of seri­ous brain dam­age at an early age. 
• The United Nations Commission on Human Rights, meet­ing in Geneva in April, called for a mora­to­ri­um on all exe­cu­tions. The res­o­lu­tion was co-spon­sored by 63 nations. The U.S. was one of the few coun­tries to oppose it, along with such coun­tries as Bangladesh, China, South Korea and Rwanda.8
• The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions deliv­ered his report fol­low­ing his first vis­it to this coun­try. He found a ​“sig­nif­i­cant degree of unfair­ness and arbi­trari­ness” in the U.S. death penal­ty, and par­tic­u­lar­ly fault­ed the exe­cu­tion of juve­nile offend­ers and the men­tal­ly retard­ed.9

The reli­gious com­mu­ni­ty was also vocal in oppo­si­tion to the death penal­ty in 1998. The entire Texas Conference of Churches called for an end to the death penal­ty. Catholic bish­ops in many states, and the Leadership Conferences of Women and Men Religious, repeat­ed­ly crit­i­cized the death penal­ty and called for an imme­di­ate mora­to­ri­um on executions.

In November, a unique gath­er­ing of peo­ple who had been sen­tenced to die and then released from death row in the past 25 years took place in Chicago. Thirty of the 75 peo­ple who were freed after evi­dence of their inno­cence emerged were present, along with legal experts, activists and media rep­re­sen­ta­tives from around the world. The Conference put a human face on one of the most trou­bling aspects of the death penal­ty: that it car­ries an unac­cept­able risk of exe­cut­ing the inno­cent. The voic­es of those who came close to exe­cu­tion were unan­i­mous in say­ing that the sys­tem had failed them. Instead of the nor­mal appeals process, the sto­ries of their free­dom were sto­ries of hero­ic efforts by vol­un­teer lawyers and the media, of sci­en­tif­ic advances such as DNA, and of con­tin­ued resis­tance by the state even in the face of over­whelm­ing evi­dence of innocence.

As usu­al, the sto­ries of many of the peo­ple who were exe­cut­ed this year illus­trate the unpre­dictable nature of the death penal­ty. Among those killed were: 

• Thomas Thompson was exe­cut­ed in California on July 14. The U.S. Court of Appeals for the Ninth Circuit had stopped an ear­li­er exe­cu­tion date and reversed his con­vic­tion because of inef­fec­tive assis­tance of coun­sel. The U.S. Supreme Court, how­ev­er, over­turned the appel­late court’s deci­sion because, it said, the Ninth Circuit had act­ed too late. This rep­re­sent­ed one of many ​“tri­umphs” this year of legal process over the sub­stance of a man’s life. 
• Zane Hill was exe­cut­ed in North Carolina on August 14 for the mur­der of his son dur­ing a bout of drunk­en anger. Gov. Jim Hunt, who has nev­er com­mut­ed a death sen­tence, said, ​“I am deeply sor­ry for Zane Hill’s fam­i­ly, which has suf­fered so much vio­lence and heartache as a result of his actions.…“10 The vic­tim’s fam­i­ly asked the gov­er­nor to com­mute Hill’s sen­tence, but to no avail. James Exum, a for­mer chief jus­tice of the state Supreme Court, also asked the gov­er­nor for clemen­cy. The pros­e­cu­tion had orig­i­nal­ly offered Hill a plea to sec­ond degree murder. 
• Jeremy Sagasteui was exe­cut­ed in Washington State on October 13 with­out hav­ing had any adver­sar­i­al hear­ing of whether he was guilty or deserved a death sen­tence. At his tri­al, Sagasteui act­ed as his own lawyer and nev­er pre­sent­ed a defense or put on any mit­i­gat­ing evi­dence to avoid the death penal­ty. He waived his right to appeal and fought his moth­er’s attempts to show that he was men­tal­ly incom­pe­tent. The clemen­cy board split 2 – 2 on rec­om­mend­ing mer­cy, there­by allow­ing this Kervorkian-like exe­cu­tion to go forward. 
• Similarly, Daniel Remata, who was exe­cut­ed in Florida, was attract­ed to the state to com­mit mur­der because it impos­es the death penal­ty. He refused to appeal. Robert Smith killed a fel­low pris­on­er in Indiana because he want­ed to go to death row. He turned down a 50-year sen­tence and was even­tu­al­ly exe­cut­ed. Ricky Lee Sanderson dropped his appeals and chose the gas cham­ber for his exe­cu­tion in North Carolina. Roderick Abeyta wrote to a Nevada judge ask­ing to be exe­cut­ed. In all, a total of 11 inmates dropped their appeals so that their exe­cu­tions could go forward. 
• Dwayne Allen Wright was exe­cut­ed in Virginia on October 14. Wright was 17 years old at the time of his crime, the prod­uct of a failed sys­tem of juve­nile care in the District of Columbia. Wright had been admit­ted to St. Elizabeth’s men­tal hos­pi­tal and lived at two of the city’s most noto­ri­ous juve­nile cen­ters. He suf­fered from a num­ber of men­tal prob­lems and grew up with his father incar­cer­at­ed, his moth­er suf­fer­ing from men­tal ill­ness, and an old­er broth­er who served as his father until he was mur­dered when Wright was ten. Wright’s case cap­tured the atten­tion of not­ed civ­il rights, reli­gious and polit­i­cal lead­ers, but no mer­cy was shown. Wright was the first juve­nile offend­er exe­cut­ed in Virginia since the death penal­ty was rein­stat­ed. Two oth­er juve­nile offend­ers, Joseph Cannon and Robert Carter, were exe­cut­ed in Texas. 
• Tuan Nguyen was exe­cut­ed in Oklahoma on December 10, the 50^th anniver­sary of the UN Universal Declaration of Human Rights. Nguyen was a Vietnamese refugee and a for­eign nation­al, with no coun­try to offer him help upon his arrest in 1982. He was con­vict­ed of killing his wife and two chil­dren of a rel­a­tive. His attor­neys report­ed a com­plete inabil­i­ty to com­mu­ni­cate with him over the past nine years, despite numer­ous attempts. A vis­it­ing psy­chi­a­trist was unable to per­suade him to leave his cell and ten­ta­tive­ly con­clud­ed that Nguyen was suf­fer­ing from a degen­er­a­tive neu­ro­log­i­cal dis­ease with cog­ni­tive impair­ment. Despite claims that he was incom­pe­tent to be exe­cut­ed, the Supreme Court refused, by a vote of 5 – 4, to stay his execution.

As exe­cu­tions remain at a high lev­el, con­cerns about the death penal­ty con­tin­ue to grow. With the excep­tion of politi­cians, U.S. lead­ers in the fields of reli­gion, human rights, the law, and diplo­ma­cy are increas­ing­ly voic­ing their oppo­si­tion to the way the death penal­ty is applied in this coun­try. The exe­cu­tion of juve­niles and the men­tal­ly retard­ed, exe­cu­tions that dam­age U.S. stand­ing in the inter­na­tion­al com­mu­ni­ty and exe­cu­tions of those who have dra­mat­i­cal­ly turned their lives around, togeth­er with the ever-present chance of mis­tak­en exe­cu­tions, have led more and more peo­ple to protest the con­tin­ued use of the death penal­ty. New voic­es of crit­i­cism, includ­ing those of respect­ed appel­late judges, for­mer attor­neys gen­er­al, and insti­tu­tions which for­mer­ly sup­port­ed the death penal­ty, are being heard as the per­sis­tent arbi­trari­ness and unfair­ness of cap­i­tal pun­ish­ment become ever more apparent.