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The Online Version
of the Magazine
of Cornell Law School

 

Spring 2010

 

Volume 36, No 1

Historical Sketch of Execution

The public hanging of Stephen Simmons before a crowd of some 22,000 in 1830 was one of the last public hangings in Michigan before the death penalty was abolished by the Michigan State Legislature in 1846. The carnival atmosphere which prevailed at the hanging was a big factor in turning public opinion against capital punishment.


Chart of Death Row Population
Lethal Injection Chamber

Lethal injection chamber, Angola, Louisiana.


Sister Helen Prejean

Sister Helen Prejean at the Louisiana State Penitentiary, also known as Angola.


Table of Contents  Featured Article

A History of the Death Penalty in America

by Thomas Adcock

 

The American experience in capital punishment is a kaleidoscope of legislative vogue, adaptive judicial wisdom, religion (both stern and merciful), political passion and race—played out against the backdrop of “evolving standards of decency,” a debatable progressive impulse suggested by the Supreme Court in 1958 in Trop v. Dulles.

In four centuries of life with the death penalty, Americans have been without this legal means of dispatching society’s killers, traitors, and lesser miscreants for a scant four years—from 1972 when the Supreme Court abolished capital punishment in Furman v. Georgia until 1976 when it was reinstated by way of Gregg v. Georgia, a decision said to inspire a new generation of equitable death penalty statutes.

At one time or another, all states have held the death penalty to be just and legal. Over time, some legislatures did away with executions altogether, altered means and conditions, or imposed moratoria until amendments designed to avoid constitutional or procedural challenge could be affixed to the desired fatal effect.

Notwithstanding the Supreme Court and the Eighth Amendment, government-sponsored premeditated killing is nowadays seen by most nations of the developed world as inherently cruel.

In October of 2009, the European Union called on the United States to “heed domestic and international calls to bring an end to the death penalty [and] admit that [its] use has been a failed experiment with a very high cost in human suffering and inestimable damage to the country’s standing and image in the world as a beacon for human rights and democratic values.”

State and federal executions continue apace, however. And circumstances leading to executions remain as capricious and variable as ever.

The first recorded American execution occurred in 1608 when a firing squad took aim at George Kendall, a captain of the First Colonial Army of Virginia and a member of the quarrelsome Jamestown Council. According to an account in History of Peter Kandel and Descendants by William E. Kandel (Selby Publishing, 1989), Captain Kendall publicly accused Jamestown Council President John Ratcliff of “brutish and inhuman acts with Indian girls.” Ratcliff, armed with religious disdain and the legal authority of personal fiat, responded by damning Kendall as “one of those fool Christians,” as well as a spy for Spain in the cause of wresting the Virginia colony from England.

Presently, the NAACP’s Criminal Justice Project counts more than 3,000 men and women awaiting execution in thirty-eight states whose statute books carry the death penalty.

The Brooklyn-based Equal Justice USA, a death penalty abolitionist organization, reports 682 executions carried out since the decision thirty-four years ago in Gregg—nearly three-quarters of them in the past decade.

Texas accounts for most post-Gregg executions, having strapped 441 prisoners to gurneys and injected them with a cocktail of chemicals commonly used to carry out capital sentences: thiopental sodium (a barbiturate used in anesthesia), pavulon (acurare derivative that blocks lungs from functioning), and finally, potassium chloride (a heart-cramping caustic fluid). Virginia, where the condemned may choose between Texas-style lethal injection or the electric chair, places second with 103 executions.

Forty-four percent of the nation’s death row inmates are white, according to the NAACP headcount. Forty-two percent are black, despite blacks comprising twelve percent of the U.S. population. Twelve percent are Latino, three points below population ratio. Asian Americans and Native Americans constitute one percent each.

Ninety-eight percent of death row inmates are male, according to NAACP data. Better than three-quarters were subjected to brutality at some point in their lives. Virtually all have minimal education and were born into poverty.

On the reasonable assumption that thiopental sodium, pavulon, and potassium chloride will be pumped into her veins in the near future, University of Alabama-Huntsville Professor Amy Bishop skews a socio-economic profile—perhaps offering comfort to execution advocates sensitive to death row demographics.

A neurobiologist with a Harvard Ph.D., Bishop was raised in the Boston suburb of Braintree (population 33,828, according to the 2000 Census, and ninety-four percent white). The Bishop household was an affluent one, though not without sorrows.

Amy Bishop killed her brother with a shotgun in 1986, when she was nineteen. Police consigned the matter to an accident file. Then in 1993 as a student at Harvard Medical School, Bishop was questioned by the Federal Bureau of Investigation in connection with a pipe bomb mailed to her professor’s home. The bomb failed to detonate.

On February 12 of this year, Bishop was charged with murdering three colleagues at the University of Alabama and wounding as many others when she allegedly opened fire with a nine-millimeter pistol during a faculty meeting to determine her troubled petition for academic tenure. Bishop is white. Of her three dead colleagues, two are African American. The third was born in Guntur, Andhra Pradesh, India. Among the wounded, two were white and one Latino.

Soon after the campus shootings in Alabama, the website “Jack & Jill Politics: A Black Bourgeoisie Perspective on U.S. Politics” cut to the race chase. Under the banner “Sometimes White Privilege Just Comes Along and Smacks You Upside the Head,” bloggers imagined all deliberate speed of the criminal justice system were Amy Bishop a person of color.

Like other significant dynamics of American society, race is profoundly at issue in the practice of capital punishment.

Consider:

  • In his review of criminal sentencing procedure in Georgia, for publication by the American Bar Association, Professor David Baldus of the University of Iowa College of Law found that prosecutors sought the death penalty for seventy percent of black defendants accused of killing whites, but only fifteen percent of black defendants charged with same-race murder.
  • A 1998 survey published in the Cornell Law Review found that ninety-eight percent of lead prosecutors in death penalty states were white, one percent black.
  • The U.S. General Accounting Office reported in 1990 “a pattern of evidence indicating racial disparities in charging, sentencing, and imposition of the death penalty.”
  • A U.S. Justice Department study of federal capital cases from 1995 through 2000 found that seventy-four percent of defendants were non-white, causing former Attorney General Janet Reno to say she was “sorely troubled” by the evident disparity.
  • In dissenting from the 1994 Supreme Court decision in Callins v. Collins, the late Justice Harry A. Blackmun wrote, “Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”


By October 2009, the frequency of death sentences was clearly in a plunging trend, even in the execution-friendly South.

That month as well, the venerable American Law Institute disavowed its fifty-year-old policy framework addressing executions—the Model Penal Code of 1962. The policy was deemed a failure “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” Obstacles, a press release detailed, included racial disparities, outsize court expense, the general incompetence of assigned counsel, the distraction of politicized judicial elections, and the unacceptable risk of executing innocent people.

The Model Penal Code had been widely adopted by state legislatures as a basis for supposedly evenhanded executions, as prescribed in Gregg. Though the Institute’s declaration fell short of the ABA’s call for a moratorium on the death penalty, the New York Times trumpeted its rejection of the Model Penal Code as “a tectonic shift in legal theory.”

Indeed, the pro-execution lobby is contracting. In January 2010, eight Internet websites were listed by the search engine Google as being in favor of capital punishment. By mid-February, half had shut down. Arguably the most active defender of capital punishment on the national scene is Dudley C. Sharp Jr. of Houston, who created the political action group, Justice For All.

“The death penalty debate in the U.S. is dominated by the fraudulent voice of the anti-death penalty movement,” Sharp maintained in a 1997 essay on his website, prodeathpenalty.com. “The culture of lies and deceit so dominates that movement that many of the falsehoods are now wrongly accepted as fact.”

Sharp accuses death penalty opponents of flawed logic in believing that if two acts have the same ending or result, “then those two acts are morally equivalent.” In lectures and television appearances, he poses the rhetorical questions: Is the legal taking of property to satisfy a debt the same as auto theft? Are kidnapping and incarceration the same? Are rape and making love the same?

The son of President Eisenhower’s secretary of the Air Force from 1959–1961, Sharp was actually a death penalty opponent until 1995 when his daughter-in-law was raped and murdered. In addition to his many pungent treatises, Sharp’s website also features selections by G. Edward Griffin, an officer of the John Birch Society, and former New York Governor George E. Pataki, counsel at the Manhattan firm Chadbourne & Parke.

As governor, Pataki succeeded in restoring New York’s death penalty in 1995, after a hiatus of twenty-two years and during a time of public outcry against an extraordinary crime wave. In a 1997 opinion column for USA Today, the governor claimed that in merely two years his death penalty initiative had “turned the tables on fear and put it back where it belongs—in the hearts of criminals.” Pataki wrote further:

Within just one year, the death penalty helped produce a dramatic drop in violent crime. Just as important, it has restored New Yorkers’ confidence in the justice system. Only the most inhuman murderers are eligible for it. . . . The jury must consider the defendant’s prior criminal history, mental capacity, character, background, state of mind, and the extent of his or her participation in the crime.

Nevertheless, the Court of Appeals nullified Pataki’s effort in 2004, finding the new (and never employed) statute contrary to the state constitution. There has not been a hanging in New York since 1888 (see sidebar).

Professor John H. Blume, co-founder and director of Cornell Law School’s Death Penalty Project, believes that the death penalty era in America is coming to a close.

“Five or ten years ago I might not have believed so,” said Blume in an interview. “But DNA exonerations have played a significant role, and that’s a huge factor. Also, I’m hoping the cost of the whole thing will be a significant factor.”

Moreover, he added, “Almost every jurisdiction now has life without parole.”

A former student at Yale University’s School of Divinity before changing course and entering Yale Law School, Blume has represented numerous death row inmates in clemency appeals. In so doing, he is frequently at odds with the prosecutorial religiosity.

In an article published in 2000 by the William & Mary Bill of Rights Journal—”Don’t Take His Eye, Don’t Take His Tooth, and Don’t Cast the First Stone”—Blume and Professor Sheri Lynn Johnson, assistant director of the Cornell Death Penalty Project, cite numerous instances of biblical suasion in the cause of execution. The Cornell Law professors wrote of the reasoning behind this tactic:

…God gave the ‘sword of justice to Noah, who represents the government, thereby giving the government the power to decide who dies, or that he, the prosecutor, ‘is the servant of God to execute his wrath on the wrongdoer. …[I]n three cases, the prosecutor cited the Bible in arguing that because police and prosecutors are ordained by God as His representatives, to disobey them is to resist God Himself, and that ‘he who resists authority has opposed the ordinance of God…and will receive condemnations.’

The article cites “conflicting judgments about the propriety” of religious debate in court—for or against the death penalty.

Pennsylvania rules, for instance, now hold that “reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action.” In North Carolina, prosecutors have some leeway: it is permissible to offer certain biblical quotations—”If he smite him,” for instance—but improper to argue that law officers are ordained by God.

As a lawyer who once considered ordination as a career path, Blume was asked if the need for rules restraining sermons in court seemed crazy. He hesitated before answering, “The only reason I won’t react strongly is that I’ve been traumatized.“

Blume touched on yet another troubling point, the parade of incompetent lawyers assigned in capital defense cases. Incompetence—notably in the instance of one psychotic defense counsel committing suicide—is the common thread of Death Penalty Stories, published last year by Foundation Press, co-edited by Professors Blume and Jordan M. Steiker of the University of Texas School of Law.

Blume said the suicide case “is not that exceptional.”

In addresses to bar groups and law firms interested in volunteer capital defense work, Blume tells the stories collected in his book. “Sometimes the reaction is almost disbelief. The lawyers are shocked,” said Blume. “But then when someone does pro bono they quickly agree with me.”

Of course, lawyers who represent destitute defendants in capital cases are not uniformly useless.

Robert Knightly, a solo practitioner in Albany and former criminal defense attorney for the Manhattan and Queens offices of the Legal Aid Society, distinguishes between assigned counsel and reasonably financed public defenders.

Outside of a handful of big cities with Legal Aid services and the like, lawyers for poor defendants are likely to be assigned by the courts.

“They are not volunteers, they usually don’t know criminal law—and they might not even have trial experience,” said Knightly in an interview. “This is some lawyer they take off a bar list. What’s a real estate lawyer know about criminal law? This guy’s clients may not appreciate his doing criminal defense.”

The difficulties of defending an accused murderer, say, tend to smack down an amateur in the field.

“Nobody’s on his side,” said Knightly, who joined the Legal Aid Society after retiring from the New York Police Department at the rank of lieutenant. “The prosecutor won’t give him anything, and no cop will give him anything.”

The truth as Mr. Knightly sees it: “You get trial experience by making mistakes.”

“It is very difficult when a client is executed,” said Blume, who tends toward understatement. “Although some clients do seem ‘ready to go,’ and in some cases end up, ironically, trying to make you feel better,” he said.

“One minute you’re talking to someone who is perfectly ‘fine’ and then they’re whisked into an execution chamber, strapped down, and they die. Then fifteen minutes later you’re standing outside a prison. It’s surreal.

“I try to be philosophical about it,” said Blume, “and understand that some clients will die, that it’s the nature of the work. But there is a lot of second guessing as you think back about what you could have done differently.”

No second thoughts are needed regarding Blume’s involvement in the case of the oldest man on death row. On February 15, ninety-four-year-old Viva Leroy Nash died in the Arizona state prison complex at Florence, having been incarcerated nearly his entire adult life.

At the time of Nash’s death by natural causes, Arizona prosecutors had petitioned the Supreme Court in opposition to a federal district court ruling that found Nash mentally incapable of assisting in his defense at a new trial for the fatal shooting of a store clerk after his escape from a Utah prison. Blume was consulting with Nash’s attorney to prepare a response to the Arizona petition.

The Nash case, said Professor Blume, “demonstrates the waste of the system. The state spent millions of dollars trying to execute Nash when it should have been obvious to anyone that he posed no danger to anyone and would die in prison before he would ever be executed. “His case is a poster child for the saying that ‘the death penalty is a luxury we can no longer afford.’”

As a sign of changeable standards of decency, the Supreme Court ruled in 2004 in Atkins v. Virginia, that executing mentally retarded persons violates the Eighth Amendment. The question of executing juveniles perhaps remains in evolutionary process. The high court may never entertain the symbiosis of poverty and death row.

Sister Helen Prejean, a Roman Catholic nun of the Sisters of St. Joseph of Medaille, speaks repeatedly of poverty as a leading death penalty abolitionist. A white southerner and author of Dead Man Walking, Prejean left what she termed her “ethereal” religious life some years ago and moved to the all-black St. Thomas Public Housing Project in New Orleans.

In a recent article for Salt of the Earth magazine entitled “Would Jesus Pull the Switch?” she recollected a principal lesson resulting from the move. “It didn’t take long to see that for poor people, especially poor black people, there was a greased track to prison and death row.”

The theme of George Bernard Shaw’s 1905 play Major Barbara, ever in production somewhere on the world’s stages, is poverty as the greatest of all crimes—if not the only crime.

“I don’t know if it’s the only crime,” said Blume. “But I know that you have to look long and hard to find a rich person on death row.”

As evidence that minority opinion, especially when eloquent, may have longer life than a majority notion of the moment, Blackmun concluded his dissent in Callins with:

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel—someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedure rules, and appear before a judge who is still committed to the protection of defendants’ rights—even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution,in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.


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