New York Times

By BOB HERBERT

How’s this for a mis­take in a death penalty case?

Back in 1994 the Georgia State Board of Pardons and Paroles, in an offi­cial order deny­ing a request for a stay of exe­cu­tion, some­how insert­ed the wrong man’s name into a cru­cial para­graph. So instead of William Henry Hance, which was the name of the man seek­ing the stay, the order con­tained a ref­er­ence to some­one named Larry Grant Lonchar.

Georgia author­i­ties did not con­sid­er that to be a big deal. Mistakes hap­pen. When an appeal on Mr. Hance’s behalf reached the Georgia Supreme Court, the vote went against him, 4 to 3, which is the judi­cial equiv­a­lent of a coin toss or a crap­shoot. With a human life at stake.

Mr. Hance, an ex-marine, was con­vict­ed of mur­der­ing a pros­ti­tute. He insist­ed he was inno­cent. His request for a stay of exe­cu­tion even­tu­al­ly reached the U.S. Supreme Court. Justice Harry Blackmun wrote that even if he had not recent­ly ​“reached the con­clu­sion that the death penal­ty can­not be imposed fair­ly with­in the con­straints of our Constitution.… I could not sup­port its impo­si­tion in this case.”

He said: ​“There is sub­stan­tial evi­dence that William Henry Hance is men­tal­ly retard­ed as well as men­tal­ly ill. There is rea­son to believe that his tri­al and sen­tenc­ing pro­ceed­ings were infect­ed with racial prej­u­dice. One of his sen­tencers has come for­ward to say that she did not vote for the death penal­ty because of his mental impairments.”

Justice in Georgia is pecu­liar. That par­tic­u­lar juror, Gayle Lewis Daniels, was ignored. Her account was lat­er cor­rob­o­rat­ed by anoth­er juror, Patricia Lemay. Ms. Lemay told me in a tele­phone inter­view that the jury delib­er­a­tions were marked by ugly racial com­ments and that she had felt ​“nau­se­at­ed” when the tri­al was over.

Ms. Lemay, who is white, said com­ments by jurors includ­ed ref­er­ences to Mr. Hance as a ​“typ­i­cal nig­ger” involved in a mur­der and ​“just one more sor­ry nig­ger that no one would miss.”

She said one juror remarked that exe­cut­ing Mr. Hance would result in ​“one less nig­ger to breed.”

Justice Blackmun’s read­ing of the case did not help Mr. Hance because the full court vot­ed 6 to 3 to deny the request for a stay.

Mr. Hance was elec­tro­cut­ed on March 31, 1994.

Cases like Mr. Hance’s, and sev­er­al cas­es in which it has been proved that inmates on death row were inno­cent, have con­tributed to a grow­ing sense of unease with the death penal­ty in this coun­try. Last week the gov­er­nor of Maryland, Parris Glendening, ordered a mora­to­ri­um on the death penal­ty in his state pend­ing the results of a spe­cial study to deter­mine whether the cap­i­tal pun­ish­ment process in Maryland is fair, and in par­tic­u­lar whether it is taint­ed by racial bias.

Maryland thus becomes the sec­ond state to declare a mora­to­ri­um on the death penal­ty. Gov. George Ryan of Illinois called a tem­po­rary halt to exe­cu­tions two years ago after sev­er­al con­demned inmates were exon­er­at­ed and released from prison. Mr. Ryan is a Republican and Mr. Glendening a Democrat. Both are sup­port­ers of capital punishment.

“It is imper­a­tive,” said Mr. Glendening, ​“that I, as well as our cit­i­zens, have com­plete con­fi­dence that the legal process involved in cap­i­tal cas­es is fair and impartial.”

In Maryland, it clear­ly is not. The vast major­i­ty of the state’s mur­der vic­tims are black. But of the 13 men cur­rent­ly on death row, 12 were con­vict­ed of killing whites. Across the U.S. the death penal­ty is applied dis­pro­por­tion­ate­ly to blacks who kill whites.

Awareness of the myr­i­ad prob­lems with the death penal­ty is mount­ing. More and more indi­vid­u­als and orga­ni­za­tions are express­ing con­cern about the dan­ger of exe­cut­ing the inno­cent, the prob­lems of bias and incom­pe­tent coun­sel, the eth­i­cal ques­tions involved when defen­dants are men­tal­ly impaired or were juve­niles at the time of the crime, and so on.

It is becom­ing ever more obvi­ous that whether or not you get the death penal­ty depends a great deal more on who you are than what you did. We’ll exe­cute William Henry Hance, but not Robert Hanssen, per­haps the most dan­ger­ous mole ever to sell U.S. secrets to a for­eign pow­er. And we won’t exe­cute Andrea Yates, the Texas woman who cold­ly and method­i­cal­ly drowned her five children.

We’re very selec­tive with the death penal­ty. Only cer­tain types qual­i­fy. Which stands the whole idea of equi­ty and jus­tice on its head.