Both sex and socio-economic class are also factors that enter into determining who receives a death sentence and who is executed. During the 1980 s and early 1990 s, only about 1 percent of all those on death row were women, even though women commit about 16 percent of all criminal homicides. More than a third of the women on death row were guilty of killing a man that had subjected them to years of violent abuse. Since 1930, only 33 women (12 of them were black) have been executed in the United States.
Discrimination against the poor is also well established. Approximately 90 percent of all death row inmates could not afford to hire a lawyer to defend them at their trials. A defendants poverty, lack of firm social roots in the community, and inadequate legal representation at trial or on appeal are all common factors among death row inmates. As Justice William O. Douglas noted in Furman, One searches our chronicles in vain for the execution of any member of the affluent strata in our society. (408 U.S. 238)
The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination.
Justice John Marshall Harlan, writing for the Court, noted: The history of capital punishment for homicides reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appears to be tasks which are beyond present human ability. (McGautha v. California, 402 U.S. 183 (1971))
Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court do not effectively restrict the discretion of juries by any real standards. They never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce.
Even if these statutes were to succeed in guiding the jury s choice of sentence, a vast reservoir of unfettered discretion remains: the prosecutor s decision to prosecute for a capital or lesser crime, the Court s willingness to accept or reject a guilty plea, the jury s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant s sanity, the final decision by the governor on clemency.
Discretion in the criminal justice system is unavoidable. The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope. Discretion, whether authorized by statutes or by their silence, has been the main vehicle to this end. But when discretion is used, as it has always been, to mark for death the poor, the friendless, the uneducated, racial minorities, and the despised, then discretion becomes injustice.
Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.
INEVITABILITY OF ERROR
Unlike all other capital punishments, the death penalty in uniquely irrevocable. Speaking to the French Chamber of Deputies in 1830, years after the excesses of the French Revolution, which he had witnessed, the Marquis de Lafayette said, I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me, Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would insist that there is little likelihood of the innocent being executed. Yet a large body of evidence shows that innocent people are often convicted of crimes, including capital crimes and that a large number have been executed.
Since 1900, in this country there have been on the average of more than four innocent people convicted of murder per year. Scores of these persons were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes before a scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.
(5 representative cases)
(1) In 1975, only one year before the Supreme Court affirmed the constitutionality of capital punishment, two African-American men in Florida, Freddie Pitts and Wilbert Lee, were released from prison after twelve years awaiting execution for the murder of two white men. Their convictions were the result of coerced confessions, erroneous testimony of alleged witnesses, and incompetent defense counsel. Though a white man eventually admitted his guilt, a nine-year legal battle was required before the governor would grant Pitts and Lee a pardon. Had their execution not been stayed while the constitutional status of the death penalty was argued in the courts, these two innocent men probably would not be alive today.
(2) Just months after Pitts and Lee were released; authorities in New Mexico were forced to admit they had sentenced to death four white men who were innocent. The accused offered a documented alibi at their trial, but the prosecution dismissed it as an elaborate ruse. The jury s verdict was based mainly on what was later revealed to be perjured testimony from an alleged eyewitness Only because of persistent investigation by newspaper reporters and the confession of the real killer, the error was exposed and the defendants were released after eighteen months on death row.
(3) In Georgia in 1975, Earl Charles was convicted to murder and sentenced to death. A surviving victim of the crime erroneously identified Charles as the gunman. A jailhouse informant who claimed he had heard Charles confess supported her testimony. Incontrovertible alibi evidence showing that Charles was in Florida at the time of the crime eventually established his innocence. Only after he had spent more than three years on death row, were his mothers unflagging efforts met with victory.
(4) In 1989, Texas authorities decided not to retry Randall Dale Adams after the appellate court reversed his conviction for murder. Adams had spent more than three years on death row for the murder of a Dallas police officer. He was convicted on the perjured testimony of a 16-year-old youth who was the real killer. Adam s plight was vividly presented in the 1988 docudrama, The Thin Blue Line, which convincingly told the true story of the crime and exposed the errors that resulted in his conviction.
(5) Another case in Texas from the 1980 s tells an even more twisted story. In 1980 a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 15-year-old white schoolgirl. Interrogated by the police, they were told, one of you two is going to hang for this. Looking at Brandley, the officer said, since you re the nigger, your elected In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, the police ignored other leads, and the courtroom atmosphere reeked of racism. In 1986 Centurion Ministries (a volunteer group devoted to freeing wrongly convicted prisoners) came to Brandley s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990.
Each of the five cases has the same ending: The innocent prisoner is saved from execution and is released. But when prisoners are executed, no legal forum exists in which unanswered questions about their guilt can be resolved. In May 1992, Roger Keith Coleman was executed in Virginia despite widely publicized doubts surrounding his guilt and evidence that pointed to another person as the murderer, evidence that was never submitted at his trial. Not until late in the appeal process did anyone take seriously the possibility that the state was about to kill an innocent person, and the efforts to delay or nullify his execution failed. Was Coleman really innocent? At the time of his execution, his case was marked with many of the same features found in other cases where the defendant was eventually cleared. Were Coleman still in prison, his friends and lawyers would have a strong incentive to resolve these questions. But with Coleman dead, further inquiry into the facts of the crime for which he was convicted of is unlikely.
Overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant s previous criminal record, inadequate defense counsel, seemingly conclusive circumstantial evidence ,and community pressure for a conviction all explain why the judicial system cannot guarantee that justice will not miscarry. Seemingly the only ones able or more likely willing to rectify the situation are newspaper reporters, and not the police or prosecution. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially as there are no strong counterbalancing factors in favor of the death penalty.
BARBARITY
The traditional mode of execution, still available in a few states, is hanging. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be ripped off.
Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair, and hooded. A target is pinned to his chest. Five shooters, one with blanks, take aim and fire.
Electrocution has been the most widely used form of execution in this country this century. The condemned prisoner is led, or dragged into the death chamber, strapped into the chair, and electrodes are fastened to the head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals remain unconscious.
In 1983, the electrocution of John Evans in Alabama was described by a eyewitness as follows: At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans body. It lasted thirty seconds. Sparks and flames erupted from the electrode tied to his left leg. His body slammed against the straps holding him in the electric chair and his fists clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.
The electrode on the left leg was refastened. He was administered a second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined him, they reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request was denied.
At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes. Afterwards, prison officials were embarrassed by what one observer called the barbaric ritual. The prison spokesman remarked, This was supposed to be a very clean manner of administering death.
An attempt to improve on electrocution was the gas chamber. The prisoner is strapped to a chair, a container of sulfuric acid sits underneath him. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. This is the account of the 1992 execution of Don Harding in Arizona, as reported in the dissent by U.S.Supreme Court Justice John Paul Stevens:
When the fumes enveloped Don s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. He then took several more quick gulps of the fumes.
At this point Don s body started convulsing violently. His face and body fumed a deep red and the veins in his temple and neck began to bulge until I thought they were going to explode.
After about a minute Don s face leaned partially foreword, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back and his hands were clenched.
After several more manuals, the most violent of the convulsions subsided. At this time the muscles along his left arm and back began twitching in a wavelike motion under his skin. Spittle drooled down from his mouth.
Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.
Don Harding took ten minutes and thirty one seconds to die. (Gomez v. U.S. District Court, 112 S. Ct. 1652)
The latest mode of inflicting the death penalty, enacted into law by nearly two dozen states, is lethal injection, first used in Texas in 1982. It is easy to overstate the humanness and efficacy of this method. There is no way of knowing that it is really painless. As the U.S. court of Appeals observed, there is substantial and uncontroverted evidence that execution by lethal injection poses a serious risk of cruel, protracted death. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness to his or her own asphyxiation. (Chaney v. Heckler, 718 F.2nd 1174 [1983])
Nor does the execution always proceed smoothly as planned. In 1985 the authorities repeatedly jabbed needles into Stephan Morin, when they had trouble finding a useable vein because he had been a drug abuser. In 1988, during the execution of Raymond Landry, a tube attached to a needle inside the inmate s right arm began leaking, sending the lethal mixture shooting across the death chamber towards witnesses.
Indeed, by its veneer of decency and by subtle analogy with life-saving medical practice, death by lethal injection makes killing as punishment more acceptable to the public. Even when it prevents the struggles of the condemned person and avoids maiming the body, it is no different from hanging or shooting as an expression of the absolute power of the state over the helpless individual.
Most people observing an execution are horrified and disgusted. I was ashamed, writes sociologist Richard Moran, who witnessed and execution in Texas in 1985. I was an intruder, the only member of the public to trespass on the condemned man s private moment of anguish. In my face he could see the horror of his own death. Revulsion at the duty to supervise and witness executions in one reason why so many prison wardens are opponents of capital punishment.
In some people, however, executions seem to appeal to strange, aberrant impulses and give an outlet to sadistic urges. Warden Lewis Lawes wrote of the many requests he received to watch electrocutions, and told that when the job of the executioner became vacant, I received more than seven hundred applications for the position, many of them offering cut-rate prices.
Public executions were common in this country during the nineteenth century; one of the last was in 1936 in Kentucky, when 20,000 people gathered to watch a young African-American male hanged. Delight in brutality, pain, violence, and death may always be with us. But surely we must conclude that it is best for the law not to encourage these impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.
More than two centuries ago, the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishments (1764), asserted: The death penalty cannot be useful, because of the example of barbarity it gives men. True, and even if the death penalty were a useful deterrent, it would still be an example of barbarity. No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.