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© 2000 by Newsweek, Inc.
The
Death Penalty on Trial
By
Jonathan Alter
With
John McCormick in Chicago, Mark Miller in Livingston, Texas, and Kevin
Peraino in New York
June
12, 2000 Issue
June
4 — He stood at the threshold of the execution chamber in Huntsville,
Texas, 18 minutes from death by lethal injection, when official word finally
came that the needle wouldn’t be needed that day. The rumors of a 30-day
reprieve were true.
RICKY
MCGINN, A 43-year-old mechanic found guilty of raping and killing his 12-year-old
stepdaughter, will get his chance to prove his innocence with advanced
DNA testing that hadn’t been available at the time of his 1994 conviction.
The double cheeseburger, french fries and Dr Pepper he requested for dinner
last Thursday night won’t be his last meal after all.
Another galvanizing moment in the long-running debate over capital punishment:
last week Gov. George W. Bush granted his first stay of execution in five
years in office not because of deep doubts about McGinn’s guilt; it was
hard to find anyone outside McGinn’s family willing to bet he was truly
innocent. The doubts that concerned Bush were the ones spreading across
the country about the fairness of a system with life-and-death stakes.
“These death-penalty cases stir emotions,” Bush told NEWSWEEK in an exclusive
interview about the decision. Imagine the emotions that would have been
stirred had McGinn been executed, then proved innocent after death by DNA.
So, Bush figured, why take the gamble?
“Whether
McGinn is guilty or innocent, this case has helped establish that all inmates
eligible for DNA testing should get it,” says Barry Scheck, the noted DNA
legal expert and coauthor of “Actual Innocence.” “It’s just common sense
and decency.”
Even as Bush made the decent decision, the McGinn case illustrated why
capital punishment in Texas is in the cross hairs this political season.
For starters, McGinn’s lawyer, like lawyers in too many capital cases,
was no Clarence Darrow. Twice reprimanded by the state bar in unrelated
cases (and handling five other capital appeals simultaneously), he didn’t
even begin focusing on the DNA tests that could save his client until this
spring. Because Texas provides only $2,500 for investigators and expert
witnesses in death-penalty appeals (enough for one day’s work, if that),
it took an unpaid investigator from out of state, Tina Church, to get the
ball rolling.
DNA
and other evidence freed 87 people from death row; now Ricky McGinn is
roiling Campaign 2000. Why America’s rethinking capital punishment.
After
NEWSWEEK shone a light on the then obscure case (“A Life or Death Gamble,”
May 29), Scheck and the A-team of the Texas defense bar joined the appeal
with a well-crafted brief to the trial court. When the local judge surprised
observers by recommending that the testing be done, it caught Bush’s attention.
The hard-line higher state court and board of pardons both said no to the
DNA tests-with no public explanation. This time, though, the eyes of the
nation were on Texas, and Bush stepped in.
But what about the hundreds of other capital cases that unfold far from
the glare of a presidential campaign? As science sprints ahead of the law,
assembly-line executions are making even supporters of the death penalty
increasingly uneasy. McGinn’s execution would have been the fifth in two
weeks in Texas, the 132d on Bush’s watch. Is that pace too fast? We now
know that prosecutorial mistakes are not as rare as once assumed; competent
counsel not as common. Since the Supreme Court allowed reinstatement of
the death penalty in 1976, 87 death-row inmates have been freed from prison.
With little money available to dig up new evidence and appeals courts usually
unwilling to review claims of innocence (they are more likely to entertain
possible procedural trial-court errors), it’s impossible to know just how
many other prisoners are living the ultimate nightmare.
So for the first time in a generation, the death penalty is in the dock-on
the defensive at home and especially abroad for being too arbitrary and
too prone to error. The recent news has prompted even many conservative
hard-liners to rethink their position. “There seems to be growing awareness
that the death penalty is just another government program that doesn’t
work very well,” says Stephen Bright of the Southern Center for Human Rights.
When Gov. George Ryan of Illinois, a pro-death-penalty Republican, imposed
a moratorium on capital punishment in January after 13 wrongly convicted
men were released from Illinois’s death row, it looked like a one-day event.
Instead, the decision has resonated as one of the most important national
stories of the year. The big question it raises, still unanswered: how
can the 37 other states that allow the death penalty be so sure that their
systems don’t resemble the one in Illinois?
In that sense, the latest debate on the death penalty seems to be turning
less on moral questions than on practical ones. While Roman Catholicism
and other faiths have become increasingly outspoken in their op- position
to capital punishment (even Pat Robertson is now against it), the new wave
of doubts seems more hardheaded than softhearted; more about justice than
faith.
The death penalty in America is far from dead. All it takes to know that
is a glimpse of a grieving family, yearning for closure and worried about
maximum sentences that aren’t so long. According to the new NEWSWEEK Poll,
73 percent still support capital punishment in at least some cases, down
only slightly in five years. Heinous crimes still provoke calls for the
strongest penalties. It’s understandable, for instance, how the families
victimized by the recent shooting at a New York Wendy’s that left five
dead would want the death penalty. And the realists are right: the vast
majority of those on death row are guilty as hell.
But is a “vast majority” good enough when the issue is life or death? After
years when politicians bragged about streamlining the process to speed
up executions, the momentum is now moving the opposite way. The homicide
rate is down 30 percent nationally in five years, draining some of the
intensity from the pro-death-penalty argument. And fairness is increasingly
important to the public. Although only two states-Illinois and New York-currently
give inmates the right to have their DNA tested, 95 percent of Americans
want that right guaranteed, according to the NEWSWEEK Poll. Close to 90
percent even support the idea of federal guarantees of DNA testing (contained
in the bipartisan Leahy-Smith Innocence Protection bill), though Bush and
Gore, newly conscious of the issue, both prefer state remedies.
The explanation for the public mood may be that cases of injustice keep
coming, and not just on recent episodes of the “The Practice” that (with
Scheck as a script adviser) uncannily anticipated the McGinn case. In the
last week alone Bush pardoned A. B. Butler after he served 17 years in
prison for a sexual assault he didn’t commit, and Virginia Gov. James Gilmore
ordered new testing that will likely free Earl Washington, also after 17
years behind bars. All told, more than 70 inmates have been exonerated
by DNA evidence since 1982, including eight on death row.
Death-penalty advocates often point out that no one has been proved innocent
after execution. But the DNA evidence that could establish such innocence
has frequently been lost by prosecutors with no incentive to keep it. In
a recent Virginia case, a court actually prevented posthumous examination
of DNA evidence. On the defense side, lawyers and investigators concentrate
their scarce resources on cases where lives can be spared.
And while DNA answers some questions, it raises others: if so many inmates
are exonerated in rape and rape-murder cases where DNA is obtainable, how
about the vast majority of murders, where there is no DNA? Might not the
rate of error be comparable?
Politics, for once, seems to be in the background, largely because views
of the death penalty don’t break down strictly along party lines. Ryan
of Illinois is a Republican; Gray Davis, the hard-line governor of California,
a Democrat. The Republican-controlled New Hampshire Legislature recently
voted to abolish the death penalty; the Democratic governor vetoed the
bill. Perhaps the best way to understand how the politics of the death
penalty is shifting is to view it as a tale of two Rickys:
In January 1992, Arkansas Gov. Bill Clinton interrupted his presidential
campaign to return home to preside over the execution of Ricky Ray Rector,
a black man convicted of killing a police officer. Rector had lobotomized
himself with a bullet to his head; he was so incapacitated that he asked
that the pie served at his last meal be saved for “later.” By not preventing
the execution of a mentally impaired man, Clinton was sending a strong
message to voters: the era of soft-on-crime Democrats was over. Even now,
Al Gore doesn’t dare step out front on death-penalty issues.
Ricky McGinn’s case presented a different opportunity for Bush. While the
decision to grant a stay was largely based on common sense and the merits
of the case, it was convenient, too. In 1999, Talk magazine caught Bush
making fun of Karla Faye Tucker, the first woman executed in Texas since
the Civil War. Earlier this year, at a campaign debate sponsored by CNN,
the cameras showed the governor chuckling over the case of Calvin Burdine,
whose lawyer fell asleep at his trial. In going the extra mile for McGinn
over the objections of the appeals court and parole board, Bush looked
prudent and blunted some of the criticism of how he vetoed a bill establishing
a public defenders’ office in Texas and made it harder for death-row inmates
to challenge the system.
That system has scheduled 19 more Texas executions between now and Election
Day. Gary Graham, slated to die June 22, was convicted on the basis of
one sketchy eyewitness account when he was 17. The absence of multiple
witnesses would make him ineligible for execution in the Bible (“At the
mouth of one witness he shall not be put to death”-Deuteronomy 17:6); and
Graham’s age at the time he was convicted of the crime in 1981 would make
him too young to be executed in all but four other nations in the world.
Americans might not realize how upset the rest of the world has become
over the death penalty. All of our major allies except Japan (with a half-dozen
executions a year) have abolished the practice. Only China, Iran, Saudi
Arabia and Congo execute more than the United States. A draft version of
the European Union’s Bill of Rights published last week bars EU countries
from extraditing a suspected criminal to a country with a death penalty.
(If approved, this could wreak havoc with international law enforcement).
Admission to the EU is now contingent on ending capital punishment, which
will force Turkey to abolish its once harsh death-penalty system.
The execution of juvenile offenders is a particular sore spot abroad. The
United States has 73 men on death row for crimes committed when they were
too young to drink or vote (mostly age 17); 16 have been executed, including
eight in Texas. That’s more than the rest of the world combined.
So far, opposition abroad has had little effect at home. What changed the
climate in the United States was a series of cases in Illinois. The story
traces back to the convictions of four black men, two of whom were condemned
to die, for the 1978 murders of a white couple in the Chicago suburb of
Ford Heights. In the early 1980s, Rob Warden and Margaret Roberts, the
editors of a crusading legal publication called The Chicago Lawyer, turned
up evidence that the four might be innocent. The state’s case fell apart
in 1996, after DNA evidence showed that none of the so-called Ford Heights
Four could have raped the woman victim. It was only one case, but it had
a searing effect in Illinois for this reason: three other men confessed
to the crime and were convicted of it. The original four were unquestionably
innocent-and two of them had nearly been executed.
By then other Illinois capital cases were falling apart. Some of the key
legwork in unraveling bum convictions came from Northwestern University
journalism students. Late in 1998 their school hosted a conference on wrongful
convictions. The event produced a stunning photo op: 30 people who’d been
freed from death rows across the country, all gathered on one Chicago stage.
But it was another Illinois case, early in 1999, that really began to tip
public opinion. A new crop of Northwestern students helped prove the innocence
of Anthony Porter, who at one point had been just two days shy of lethal
injection for a pair of 1982 murders. Once again, the issue in Illinois
wasn’t the morality of death sentences, but the dangerously sloppy way
in which they were handed out. Once again a confession from another man
helped erase doubt that the man convicted of the crime, who has an IQ of
51, had committed it.
By last fall the list of men freed from death row in Illinois had grown
to 11. That’s when the Chicago Tribune published a lavishly researched
series explaining why so many capital cases were suspect. The Tribune’s
digging found that almost half of the 285 death-penalty convictions in
Illinois involved one of four shaky components: defense attorneys who were
later suspended or disbarred, jailhouse snitches eager to shorten their
own sentences, questionable “hair analysis” evidence or black defendants
convicted by all-white juries. What’s more, in the weeks after those stories
appeared, two more men were freed from death row. That pushed the total
to 13-one more than the number of inmates Illinois had executed since reinstating
the death penalty in 1977.
The
Porter case and the Tribune series were enough for Governor Ryan. On Jan.
31, he declared a moratorium on Illinois executions, and appointed a commission
to see whether the legal process for handling capital cases in Illinois
can be fixed. Unless he gets a guarantee that the system can be made perfect,
Ryan told NEWSWEEK last week, “there probably won’t be any more deaths,”
at least while he’s governor. “I believe there are cases where the death
penalty is appropriate,” Ryan said. “But we’ve got to make sure we have
the right person. Every governor who holds this power has the same fear
I do.”
But few are acting on it. In the wake of the Illinois decision, only Nebraska,
Maryland, Oregon and New Hampshire are reviewing their systems. The governors
of the other states that allow the death penalty apparently think it works
adequately. If they want to revisit the issue, they might consider the
following factors:
Race: The role of race and the death penalty is often misunderstood. On
one level, there’s the charge of institutional racism: 98 percent of prosecutors
are white, and, according to the NAACP Legal Defense Fund, they are much
more likely to ask for the death penalty for a black-on-white crime than
when blacks are the victims. Blacks convicted of major violent offenses
are more likely than white convicts to end up on death row. But once they
get there, blacks are less likely than white death-row inmates to be executed
because authorities are on the defensive about seeming to target African-Americans.
The result is both discrimination and reverse discrimination-with deadly
consequences.
The risk of errors: The more people on death row, the greater chance of
mistakes. There are common elements to cases where terrible errors have
been made: when police and prosecutors are pressured by the community to
“solve” a notorious murder; when there’s no DNA evidence or reliable eyewitnesses;
when the crime is especially heinous and draws large amounts of pretrial
publicity; when defense attorneys have limited resources. If authorities
were particularly vigilant when these issues were at play, they might identify
problematic cases earlier.
Deterrence: Often the first argument of death-penalty supporters. But studies
of the subject are all over the lot, with no evidence ever established
of a deterrent effect. When parole was more common, the argument carried
more logic. But nowadays first-degree murderers can look forward to life
without parole if caught, which should in theory deter them as much as
the death penalty. It’s hard to imagine a criminal’s thinking: “Well, since
I might get the death penalty for this crime, I won’t do it. But if it
was only life in prison, I’d go ahead.”
Inadequate counsel: Beyond the incompetent lawyers who populate any court-appointed
system, Congress and the Clinton administration have put the nation’s 3,600
death-row inmates in an agonizing Catch-22. According to the American Bar
Association Death Penalty Representation Project, in a state like California,
about one third of death-row inmates must wait for years to be assigned
lawyers to handle their state direct appeals. And at the postconviction
level in some states, inmates don’t have access to lawyers at all. The
catch is that the 1996 Anti-Terrorism and Effective Death Penalty Act has
a statute of limitations requiring that inmates file federal habeas corpus
petitions (requests for federal court review) within one year after the
end of their direct state appeal. In other words, because they have no
lawyer after their direct appeals, inmates often helplessly watch the clock
run out on their chance for federal review. This cuts down on frivolous
appeals-but also on ones that could reveal gross injustice.
Fact-finding: Most states aren’t as lucky as Illinois. They don’t have
reporters and investigators digging into the details of old cases. As the
death penalty becomes routine and less newsworthy, the odds against real
investigation grow even worse. And even when fresh evidence does surface,
most states place high barriers against its use after a trial. This has
been standard in the legal system for generations, but it makes little
sense when an inmate’s life is at stake.
Standards of guilt: In most jurisdictions, the judge instructs the jury
to look for “guilt beyond a reasonable doubt.” But is that the right standard
for capital cases? Maybe a second standard like “residual doubt” would
help, whereby if any juror harbors any doubt whatsoever, the conviction
would stand but the death penalty would be ruled out. The same double threshold
might apply to cases involving single eyewitnesses and key testimony by
jailhouse snitches with incentives to lie.
Cost: Unless executions are dramatically speeded up (unlikely after so
many mistakes), the death penalty will remain far more expensive than life
without parole. The difference is in the up front prosecution costs, which
are at least four times greater than in cases where death is not sought.
California spends an extra $90 million on its capital cases beyond the
normal costs of the system. Even subtracting pro bono defense, the system
is no bargain for taxpayers.
Whether you’re for or against the death penalty, it’s hard to argue that
it doesn’t need a fresh look. From America’s earliest days, when Benjamin
Franklin helped develop the notion of degrees of culpability for murder,
this country has been willing to reassess its assumptions about justice.
If we’re going to keep the death penalty, the public seems to be saying,
let’s be damn sure we’re doing it right. DNA testing will help. So will
other fixes. But if, over time, we can’t do it right, then we must ask
ourselves if it’s worth doing at all.
Voices
From The Front: Against Penalty
Lawrence
C. Marshall
June
12 — Ten years ago I had no strong feelings about the death penalty. Since
then, however, I’ve represented several death-row inmates who turned out
to be innocent, and I’ve studied the realities of capital punishment in
the United States. I’ve concluded that no matter what we think about the
morality of the death penalty, the practicalities of how it’s currently
administered render it indefensible.
THE
DECISION ON who lives and dies often turns less on the facts of a case
than on the race of the defendant, the race of the victim and the quality
of the defendant’s lawyer. The most disturbing reality of all, though,
is the system’s remarkable propensity to condemn people to die for crimes
they did not commit.
During the past 25 years, 87 men and women have been freed from death rows
based not on technicalities but on the evidence. In almost all cases, it
took some miraculous event for the truth to emerge. In one case, a man
was freed only because a minuscule sample of DNA was found on the side
of a test tube 10 years after his conviction. Who knows how many innocent
men and women have been executed without any such fluke exposing their
innocence? A system that relies on miracles is doomed to commit grievous
error.
I cannot imagine the horror that the family of a murder victim experiences,
and I would not dare criticize some victims’ support for capital punishment.
One who takes innocent human life must pay dearly, for otherwise we devalue
life itself. But we devalue life even more when we carry out executions
despite clear evidence that the system is broken.
The only true solution is to abolish the death penalty and to sentence
our worst offenders to life in prison without parole. Short of that, certain
reforms could reduce the risk of wrongful convictions. We could forbid
executions in cases decided on the testimony of one witness, an uncorroborated
confession or a jailhouse snitch. We could insist that judges find an absolute
certainty of guilt-not just guilt beyond reasonable doubt-before levying
death penalties. And we could ensure that every defendant has a qualified
lawyer who has adequate resources to investigate the case.
But we still would face the question of whether the value of executing
criminals outweighs the inequities that will remain. Reasonable minds will
differ on this. I do not believe, however, that anyone who looks carefully
can conclude that our current system should be trusted to decide who shall
live and who shall die.
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