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USA > Law, Justice > Death Penalty
Abolishing capital punishment
The Death Penalty Endgame
JAN. 16, 2016
The New York Times
By THE EDITORIAL BOARD
How does the death penalty in America end?
For decades that has been an abstract question. Now there may be an answer in
the case of Shonda Walter, a 36-year-old black woman on Pennsylvania’s death
row. On Friday, the Supreme Court met to discuss whether to hear a petition from
Ms. Walter, who is asking the justices to rule that in all cases, including
hers, the death penalty violates the Eighth Amendment’s ban on cruel and unusual
Ever since 1976, when the court allowed executions to resume after a four-year
moratorium, the abolition movement has avoided bringing a broad constitutional
challenge against the practice, believing that it would not succeed. In that
time, 1,423 people have been put to death.
Yet there is no question that the national trend is moving away from capital
punishment. Since the late 1990s, almost every year has seen fewer executions,
fewer new death sentences and fewer states involved in the repugnant business of
killing their citizens.
In 2015, there were 28 executions and 49 new death sentences, the lowest numbers
in decades. Seven states have abandoned the practice entirely since 2004, for a
total of 19 that no longer have the death penalty. Many others have not executed
anyone for years. And only three states — Texas, Georgia and Missouri — were
responsible for almost all of last year’s executions.
A majority of Americans still support capital punishment, but the percentage
favoring it has dropped from around 80 percent in the 1990s to about 60 percent
now. When polls offer a choice between death and life without parole, people
roughly split evenly.
In the past 14 years alone, the Supreme Court has barred the execution of
several categories of people: minors, the intellectually disabled, and those
convicted of a crime other than murder. In that last case, decided in 2008,
Justice Anthony Kennedy wrote for the court, “When the law punishes by death, it
risks its own sudden descent into brutality, transgressing the constitutional
commitment to decency and restraint.”
Taken together, these signs have led some abolitionists to conclude that the
conditions for ending capital punishment entirely are now as favorable as they
might ever be. That argument got a major boost last June, when Justice Stephen
Breyer, in a long dissent from a 5-to-4 ruling that allowed Oklahoma to proceed
with its inhumane lethal-injection drug protocol, suggested he would be open to
a case challenging the constitutionality of the death penalty itself.
In his dissent, which was joined by Justice Ruth Bader Ginsburg, Justice Breyer
explained in detail how the death penalty was unreliable, arbitrary and racially
discriminatory. He said it was no longer sufficient simply “to patch up the
death penalty’s legal wounds one at a time,” because the practice as a whole
“most likely” violates the Eighth Amendment.
Shonda Walter’s case is the first to take up Justice Breyer’s challenge. Ms.
Walter was convicted of murdering an 83-year-old man named James Sementelli. Her
appointed lawyers put on no defense and offered no argument that might have
spared her from a death sentence. Pennsylvania appeals courts agreed that she
had inexcusably bad representation, but they still upheld her conviction and
sentence. Since Ms. Walter does not fit the special categories of defendants who
are shielded from the death penalty, her appeal is based on the claim that all
executions violate the Constitution.
The justices may not grant Ms. Walter’s petition (others are also expected to be
filed in the coming weeks), but they can no longer ignore the clear movement of
history. They already have all the evidence they need to join the rest of the
civilized world and end the death penalty once and for all.
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A version of this editorial appears in print on January 17, 2016, on page SR10
of the New York edition with the headline:
The Death Penalty Endgame.
The Death Penalty Endgame,
NYT, JAN. 16, 2016,
Continues to Fall in U.S.
The New York Times
By ETHAN BRONNER
years after the Supreme Court reinstated the death penalty, its use is waning,
with prosecutors and juries preferring to sentence convicted murderers to life
in prison without parole. New data for 2012 show that nine states executed
inmates this year, the fewest in two decades, and the number of death sentences
handed down this year — 80 — was about a third of the total in 2000.
“We have done polling on this, and the biggest reason is lingering doubt about
guilt,” said Richard C. Dieter, executive director of the Death Penalty
Information Center, which tracks executions around the country and released the
numbers this week. “Between 90 and 95 percent of the people are aware that there
have been exonerations based on DNA evidence.”
While a majority of states — 33 — still have the death penalty on the books,
that number has also been on the decline. Connecticut banned capital punishment
this year, the fifth state in five years to do so, following Illinois, New
Jersey, New Mexico and New York. Twenty-nine states either do not have the death
penalty or have not carried out an execution in five years.
In addition, four states with histories of executing convicted murderers —
Indiana, North Carolina, South Carolina and Virginia — sentenced no one to death
this year. Three-quarters of the 43 people put to death in 2012 were in four
states: Arizona, Mississippi, Oklahoma and Texas.
Another major reason for the decline is that the death penalty involves enormous
expense and numerous appeals; some prosecutors say they prefer life
Stan Garnett, the district attorney in Boulder County, Colo., wrote recently
that as his state considered repealing the death penalty, he would like his
fellow citizens to know that he was “not morally or philosophically opposed” to
it. But he considers the death penalty impractical because it is expensive,
time-consuming and often unfairly applied.
“A 1994 Colorado death verdict currently pending before the U.S. Supreme Court
has cost the state of Colorado nearly $18 million to fund through all the
appeals,” Mr. Garnett wrote. He said his office’s operating budget is $4.6
million and prosecutes 1,900 felonies a year.
In California, a referendum last month seeking to end the death penalty because
of its cost narrowly failed to achieve a majority. But the 47 percent of voters
who supported the referendum represents a much larger number of Californians
opposing capital punishment than ever before. The state has not carried out an
execution in nearly seven years.
A year ago, the chief justice of the California Supreme Court, Tani
Cantil-Sakauye, called for a re-evaluation of the death penalty system, saying
it was ineffective. Asked if she supported the death penalty, she replied: “I
don’t know if the question is whether you believe in it anymore. I think the
greater question is its effectiveness and, given the choices we face in
California, should we have a merit-based discussion on its effectiveness and
Texas executed 15 people this year, by far the most in the country. But for the
eighth consecutive year it executed more people than it sentenced to death,
signaling that fewer executions will be carried out in the future, according to
the Death Penalty Information Center, in Washington. The total number of people
on death row in the country is 3,170, down from 3,670 in 2000.
James S. Liebman, a law professor at Columbia University, said he had studied
the death penalty’s use by county, rather than by state, because punishment is
sought at the county level, and he found that 60 percent of the nation’s
counties no longer seek it. In addition, he said, some counties that in the past
had led the country in its use, like Houston, did not hand down a single death
penalty this year.
“A lot of officials have come to the conclusion that if they are concerned about
deterrence and protection of their citizens and the diminishing of crime, the
death penalty is not a very good strategy,” Professor Liebman said. “The
counties that use it are ones that tend to spend a lot less money on law
enforcement, criminal justice and the courts. They are using it instead of
modern law enforcement.”
Professor Liebman, like Mr. Dieter of the Death Penalty Information Center,
noted that murders account for a small percentage of crimes, yet seeking the
death penalty can take up most of a prosecutor’s budget. Death penalty cases
usually involve two trials — one to determine guilt, and the other to decide on
the death penalty — and better lawyers for the defense. In addition, prosecutors
do not like to lose death penalty cases, so they tend to put in far greater
effort and resources.
“If you get someone into jail, the likelihood of his committing murder will at
least be lower,” Professor Liebman said. “In addition, most people on death row
are never going to get executed. Death row incarceration is more expensive. It
requires single cells because the inmates are considered more dangerous and more
Mr. Dieter added: “Juries know that mistakes have been made and have lingering
doubts about absolute guilt. Life without parole gives them an alternative.”
Use of Death Sentences Continues to Fall in U.S., NYT, 20.12.2012,
An Indefensible Punishment
September 25, 2011
The New York Times
When the Supreme Court reinstituted the death penalty 35 years
ago, it did so provisionally. Since then, it has sought to articulate legal
standards for states to follow that would ensure the fair administration of
capital punishment and avoid the arbitrariness and discrimination that had led
it to strike down all state death penalty statutes in 1972.
As the unconscionable execution of Troy Davis in Georgia last week underscores,
the court has failed because it is impossible to succeed at this task. The death
penalty is grotesque and immoral and should be repealed.
The court’s 1976 framework for administering the death penalty, balancing
aggravating factors like the cruelty of the crime against mitigating ones like
the defendant’s lack of a prior criminal record, came from the American Law
Institute, the nonpartisan group of judges, lawyers and law professors. In 2009,
after a review of decades of executions, the group concluded that the system
could not be fixed and abandoned trying.
Sentencing people to death without taking account of aggravating and mitigating
circumstances leads to arbitrary results. Yet, the review found, so does
considering such circumstances because it requires jurors to weigh competing
factors and makes sentencing vulnerable to their biases.
Those biases are driven by race, class and politics, which influence all aspects
of American life. As a result, they have made discrimination and arbitrariness
the hallmarks of the death penalty in this country.
For example, two-thirds of all those sentenced to death since 1976 have been in
five Southern states where “vigilante values” persist, according to the legal
scholar Franklin Zimring. Racism continues to infect the system, as study after
study has found in the past three decades.
The problems go on: Many defendants in capital cases are too poor to afford
legal counsel. Many of the lawyers assigned to represent them are poorly
equipped for the job. A major study done for the Senate Judiciary Committee
found that “egregiously incompetent defense lawyering” accounted for about
two-fifths of the errors in capital cases. Apart from the issue of counsel,
these cases are more expensive at every stage of the criminal process than
Politics also permeates the death penalty, adding to chances of arbitrary
administration. Most prosecutors in jurisdictions with the penalty are elected
and control the decision to seek the punishment. Within the same state,
differing politics from county to county have led to huge disparities in use of
the penalty, when the crime rates and demographics were similar. This has been
true in Pennsylvania, Georgia, Texas and many other states.
So far, under this horrifying system, 17 innocent people sentenced to death have
been exonerated and released based on DNA evidence, and 112 other people based
on other evidence. All but a few developed nations have abolished the death
penalty. It is time Americans acknowledged that the death penalty cannot be made
to comply with the Constitution and is in every way indefensible.
Punishment, NYT, 25.9.2011,
Still Racist and Arbitrary
July 8, 2011
The New York Times
By DAVID R. DOW
LAST week was the 35th anniversary of the return of the American death penalty.
It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of
Iowa law professor, David C. Baldus (who died last month), along with two
colleagues, published a study examining more than 2,000 homicides that took
place in Georgia beginning in 1972. They found that black defendants were 1.7
times more likely to receive the death penalty than white defendants and that
murderers of white victims were 4.3 times more likely to be sentenced to death
than those who killed blacks.
What became known as the Baldus study was the centerpiece of the Supreme Court’s
1987 decision in McCleskey v. Kemp. That case involved a black man, Warren
McCleskey, who was sentenced to die for murdering a white Atlanta police
officer. Mr. McCleskey argued that the Baldus study established that his death
sentence was tainted by racial bias. In a 5-to-4 decision, the Supreme Court
ruled that general patterns of discrimination do not prove that racial
discrimination operated in particular cases.
Of course, the court had to say that, or America’s capital justice system would
have screeched to a halt. Georgia is not special. Nationwide, blacks and whites
are victims of homicide in roughly equal numbers, yet 80 percent of those
executed had murdered white people. Over the past three decades, the Baldus
study has been replicated in about a dozen other jurisdictions, and they all
reflect the same basic racial bias. By insisting on direct evidence of racial
discrimination, the court in McCleskey essentially made the fact of pervasive
racism legally irrelevant, because prosecutors rarely write e-mails announcing
they are seeking death in a given case because the murderer was black (or
because the victim was white).
In Texas, though, they do come close. In 2008, the district attorney of Harris
County, Chuck Rosenthal, resigned after news emerged that he had sent and
received racist e-mails. His office had sought the death penalty in 25 cases;
his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite
Since 1976, Texas has carried out 470 executions (well more than a third of the
national total of 1,257). You can count on one hand the number of those
executions that involved a white murderer and a black victim and you do not need
to use your thumb, ring finger, index finger or pinkie.
Well, you might need the pinkie. On June 16, Texas executed Lee Taylor, who at
age 16 beat an elderly couple while robbing their home. The 79-year-old husband
died of his injuries. Mr. Taylor was sentenced to life in prison; there he
joined the Aryan Brotherhood, a white gang, and, four years into his sentence,
murdered a black inmate and was sentenced to death. When Mr. Taylor was
executed, it was reported that he was the second white person in Texas executed
for killing a black person. Actually, he should be counted as the first. The
other inmate, Larry Hayes, executed in 2003, killed two people, one of whom was
The facts surrounding Lee Taylor’s execution are cause for further shame. John
Balentine, a black inmate, was scheduled to die in Texas the day before Lee
Taylor’s execution. Mr. Balentine’s lawyers argued that his court-appointed
appellate lawyer had botched his case, and that he should have an opportunity to
raise issues the lawyer had neglected. Less than an hour before Mr. Balentine
was to die, the Supreme Court issued a stay.
Lee Taylor’s lawyers watched the Balentine case closely; their client too had
received scandalously bad representation, and, they filed a petition virtually
identical to the one in the Balentine case. But by a vote of 5-to-4, the
justices permitted the Taylor execution to proceed. If there were differences
between the Balentine and Taylor cases, they were far too minor to form the
boundary between life and death. But trivial distinctions are commonplace in
death penalty cases. Justice Lewis F. Powell Jr., one of the five justices in
the McCleskey majority, retired from the court in 1987. Following his retirement
he said he had voted the wrong way. If Justice Powell had changed his mind
sooner, Warren McCleskey, who was executed in Georgia in 1991, would still be
And because of a vote from a single Supreme Court justice, John Balentine lives
while Lee Taylor died. When capital punishment was briefly struck down, in 1972,
Justice Potter Stewart said the death penalty was arbitrary, like being struck
It still is, and it’s the justices themselves who keep throwing the bolts.
David R. Dow, a professor
at the University of Houston Law
is the author, most recently, of a memoir,
“The Autobiography of an
This article has been revised
to reflect the following
Correction: July 14, 2011
An Op-Ed article on Saturday about the death penalty misstated the year Justice
Lewis F. Powell Jr. retired from the Supreme Court. It was 1987, not 1991. To
have made a difference in the case of Warren McCleskey, who was executed in
1991, Justice Powell would have had to change his mind in 1987 (not “a year
sooner” than 1991, as the article said), when he was in the 5-to-4 majority that
said Mr. McCleskey could be executed.
Death Penalty, Still
Racist and Arbitrary, NYT, 8.7.2011,
Death Penalty Down in U.S.,
December 21, 2010
The New York Times
By JOHN SCHWARTZ
States are continuing a trend of executing fewer prisoners and juries are
wary of sentencing criminal defendants to die, according to year-end figures
compiled by a group that opposes the death penalty.
The 46 executions in 2010 constituted a nearly 12 percent drop from the previous
year’s total of 52, according to the group, Death Penalty Information Center,
which produces an annual report on execution trends. The overall trend shows a
marked drop when compared with the 85 executions in 2000.
Jurors, too, show a continuing preference for the alternative of punishing
criminal defendants with sentences of life without parole. Juries handed out 114
death sentences in 2010, slightly higher than the 112 death sentences last year,
and 50 percent fewer for the current decade than in the 1990s — before the
widespread availability of life without parole sentences for juries in capital
“There’s just a whole lot more concern about the accuracy of the death penalty,
the fairness and even the costs — all are contributing,” said Richard C. Dieter,
the author of the report and the executive director of the center, which is in
Washington. The availability of the alternative to the death penalty, Mr. Dieter
said, also means that “prosecutors know it’s going to be a harder sell and are
seeking it less.”
The states continue to condemn far more prisoners to death than they actually
There are 3,261 people on death row in the United States; California has the
largest population, with 697, while New Hampshire and Wyoming have one apiece. A
majority of Americans support the death penalty, with 64 percent of those
surveyed by Gallup in October 2010 favoring it and 29 percent opposed.
One contributing factor in the low number of executions nationwide is the
shortage of a drug used for executions — they were postponed or canceled in
Arkansas, California, Kentucky, Oklahoma and Tennessee.
Hospira, the company that makes sodium thiopental, the drug, has said that it
expects to resume production in the first quarter of 2011.
The legal director of a group that supports the death penalty, Kent S.
Scheidegger, said Mr. Dieter’s group had interpreted facts selectively. Mr.
Scheidegger, of the Criminal Justice Legal Foundation, said that at least half
the drop in death sentences could be attributed in part to a smaller number of
murders in recent years, a fact that he and his group argue is a result of the
nation’s high rates of incarceration.
Death Penalty Down in U.S., Figures Show, NYT,
October 28, 2010
The New York Times
Two years ago, when a splintered Supreme Court approved lethal injection as a
means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy.
Instead of ending the controversy, he said, the ruling would raise questions
“about the justification for the death penalty itself.” Since then, evidence has
continued to mount, showing the huge injustice of the death penalty — and the
particular barbarism of this form of execution.
In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on
Tuesday, the system failed him at almost every level, most disturbingly at the
Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the
execution to proceed based on a stark misrepresentation.
Of the 35 states that allow the death penalty, all now execute by lethal
injection. Most use a sequence of drugs that is supposed to provide a painless
death, but when it is administered incorrectly it causes agony that amounts to
torture. Veterinarians say the method doesn’t meet the standard for euthanizing
Arizona’s plan for Mr. Landrigan’s execution was thrown off by a shortage of
sodium thiopental, one of three drugs used in standard lethal injections. The
only maker approved by the Food and Drug Administration hasn’t been able to get
a critical ingredient for almost a year. The state obtained the drug from a
When Mr. Landrigan tried to ascertain its effectiveness for sedating him so he
wouldn’t feel the pain of the other drugs, Arizona refused to divulge the
information. After the state defied four orders from a federal district judge to
produce it, the judge stayed the execution.
When the case got to the Supreme Court, the majority overturned the stay, saying
there was “no evidence in the record to suggest that the drug obtained from a
foreign source is unsafe.” There was no evidence — either way — because Arizona
defied orders to provide it.
The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution.
Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently
said, “Mr. Landrigan would not have been sentenced to death” if she had been
given the medical evidence of the defendant’s brain damage and other factors.
Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.
She no longer had the power to alter his fate, but, in an affidavit for the
Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his
death sentence commuted to life. “Since the courts have not corrected this
injustice,” she stated, “I am compelled to submit this declaration on Mr.
Landrigan’s behalf.” The Supreme Court should have upheld the stay of execution
and forced the state to deliver the information called for. It failed,
No Justification, NYT,
Woman, 41, Is Executed in Virginia
September 23, 2010
The New York Times
By ANAHAD O’CONNOR
A woman convicted of orchestrating a plot that led to the murders of her
husband and stepson was executed in Virginia Thursday night, becoming the first
woman executed in the state in almost a century.
The woman, Teresa Lewis, 41, died by lethal injection at a correctional facility
in southeastern Virginia. With a crowd of death penalty opponents protesting
outside, Ms. Lewis was pronounced dead at 9:13 p.m., the Associated Press
reported, citing officials at the Greensville Correctional Center in Jarratt.
She was the 12th woman executed in the United States since the death penalty was
reinstated in 1976.
The case against Ms. Lewis, the first woman executed in the country since 2005,
had drawn international attention. Many of her supporters questioned the
fairness of her sentence — her co-conspirators, who fired the fatal shots, were
spared capital punishment — and doubts were raised about her mental capacity.
Psychologists involved in her case said she was borderline retarded. And her
supporters argued that she had been manipulated by the two triggermen, who stood
to gain hundreds of thousands of dollars
Death Sentences Dropped,
but Executions Rose in ’09
December 18, 2009
The New York Times
By JOHN SCHWARTZ
More death row convicts were executed in the United States this
year than last, but juries continue to grow more wary of capital punishment,
according to a new report.
Death sentences handed down by judges and juries in 2009 continued a trend of
decline for seven years in a row, with 106 projected for the year. That level is
down two-thirds from a peak of 328 in 1994, according to the report being
released Friday by the Death Penalty Information Center, a research organization
that opposes capital punishment.
“This entire decade has been marked by a declining use of the death penalty,”
said Richard Dieter, the executive director of the group.
The sentencing drop was most striking in Texas, which averaged 34 death
sentences a year in the 1990s and had 9 this year. Vic Wisner, a former
assistant district attorney in Houston, said a “constant media drumbeat” about
suspect convictions and exonerations “has really changed the attitude of
Mr. Wisner said that while polls showed continued general support for capital
punishment, “there is a real worry by jurors of, ‘I believe in it, but what if
we later find out it was someone else and it’s too late to do anything about
In 2005, Texas juries were given the option of sentencing defendants to life
While death sentences are in decline, executions rose in the past year,
according to the new report. Fifty-two prisoners have been put to death in 2009,
compared with 42 in 2007 and 37 in 2008.
The report also noted that in 2009 New Mexico became the 15th state to repeal
the death penalty, in part because of budget considerations and the high cost of
death penalty appeals, which Gov. Bill Richardson called “a valid reason” for
eliminating the ultimate sanction “in this era of austerity and tight budgets.”
But Kent Scheidegger, the legal director of the Criminal Justice Legal
Foundation, which supports capital punishment, argued that the decline in death
sentences also corresponded to a decline in the murder rate, and criticized
efforts to use cost arguments against the death penalty. The government could
“knock a large chunk off of the cost” of execution by streamlining the review
process, he said.
Douglas A. Berman, an expert on sentencing law at Ohio State University,
suggested that the rise in executions was due to last year’s relatively low
number, as states grappled with the implications of a major 2008 Supreme Court
decision on lethal injection.
In that case, Baze v. Rees, the court ended what amounted to a moratorium of
several months, beginning in 2007, on lethal injection executions by proclaiming
that the procedure used in Kentucky and other states with similar methods did
not violate the constitutional prohibition against cruel and unusual punishment.
This “post-Baze echo” in the figures, Mr. Berman said, can be seen in the
execution in Ohio this month of Kenneth Biros. It came after a legal challenge
to Ohio’s protocol, a botched execution under the state’s three-drug method for
another prisoner, and a shift to a one-drug execution method. While other court
challenges to lethal injection are proceeding around the country, he said,
Ohio’s action suggests that “states are moving forward.”
Death Sentences Dropped,
but Executions Rose in ’09, NYT, 18.12.2009,
Innocent but Dead
September 1, 2009
The New York Times
By BOB HERBERT
There is a long and remarkable article in the current New Yorker about a man
who was executed in Texas in 2004 for deliberately setting a fire that killed
his three small children. Rigorous scientific analysis has since shown that
there was no evidence that the fire in a one-story, wood frame house in
Corsicana was the result of arson, as the authorities had alleged.
In other words, it was an accident. No crime had occurred.
Cameron Todd Willingham, who refused to accept a guilty plea that would have
spared his life, and who insisted until his last painful breath that he was
innocent, had in fact been telling the truth all along.
It was inevitable that some case in which a clearly innocent person had been put
to death would come to light. It was far from inevitable that this case would be
the one. “I was extremely skeptical in the beginning,” said the New Yorker
reporter, David Grann, who began investigating the case last December.
The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by
the cries of his 2-year-old daughter, Amber. Also in the house were his year-old
twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife,
Stacy, had gone out to pick up a Christmas present for the children from the
Willingham said he tried to rescue the kids but was driven back by smoke and
flames. At one point his hair caught fire. As the heat intensified, the windows
of the children’s room exploded and flames leapt out. Willingham, who was 23 at
the time, had to be restrained and eventually handcuffed as he tried again to
get into the room.
There was no reason to believe at first that the fire was anything other than a
horrible accident. But fire investigators, moving slowly through the ruined
house, began seeing things (not unlike someone viewing a Rorschach pattern) that
they interpreted as evidence of arson.
They noticed deep charring at the base of some of the walls and patterns of soot
that made them suspicious. They noticed what they felt were ominous fracture
patterns in pieces of broken window glass. They had no motive, but they were
convinced the fire had been set. And if it had been set, who else but Willingham
would have set it?
With no real motive in sight, the local district attorney, Pat Batchelor, was
quoted as saying, “The children were interfering with his beer drinking and dart
Willingham was arrested and charged with capital murder.
When official suspicion fell on Willingham, eyewitness testimony began to
change. Whereas initially he was described by neighbors as screaming and
hysterical — “My babies are burning up!” — and desperate to have the children
saved, he now was described as behaving oddly, and not having made enough of an
effort to get to the girls.
And you could almost have guaranteed that a jailhouse snitch would emerge. They
almost always do. This time his name was Johnny Webb, a jumpy individual with a
lengthy arrest record who would later admit to being “mentally impaired” and on
medication, and who had started taking illegal drugs at the age of 9.
The jury took barely an hour to return a guilty verdict, and Willingham was
sentenced to death.
He remained on death row for 12 years, but it was only in the weeks leading up
to his execution that convincing scientific evidence of his innocence began to
emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at
Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in
the Willingham case and began systematically knocking down every indication of
The authorities were unmoved. Willingham was executed by lethal injection on
Feb. 17, 2004.
Now comes a report on the case from another noted scientist, Craig Beyler, who
was hired by a special commission, established by the state of Texas to
investigate errors and misconduct in the handling of forensic evidence.
The report is devastating, the kind of disclosure that should send a tremor
through one’s conscience. There was absolutely no scientific basis for
determining that the fire was arson, said Beyler. No basis at all. He added that
the state fire marshal who investigated the case and testified against
Willingham “seems to be wholly without any realistic understanding of fires.” He
said the marshal’s approach seemed to lack “rational reasoning” and he likened
it to the practices “of mystics or psychics.”
Grann told me on Monday that when he recently informed the jailhouse snitch,
Johnny Webb, that new scientific evidence would show that the fire wasn’t arson
and that an innocent man had been killed, Webb seemed taken aback. “Nothing can
save me now,” he said.
Innocent but Dead, NYT,
Death Penalty Disgrace
June 1, 2009
The New York Times
By BOB BARR
THERE is no abuse of government power more egregious than executing an
innocent man. But that is exactly what may happen if the United States Supreme
Court fails to intervene on behalf of Troy Davis.
Mr. Davis is facing execution for the 1989 murder of an off-duty police officer
in Savannah, Ga., even though seven of the nine witnesses have recanted their
testimony against him. Many of these witnesses now say they were pressured into
testifying falsely against him by police officers who were understandably eager
to convict someone for killing a comrade. No court has ever heard the evidence
of Mr. Davis’s innocence.
After the United States Court of Appeals for the 11th Circuit barred Mr. Davis
from raising his claims of innocence, his attorneys last month petitioned the
Supreme Court for an original writ of habeas corpus. This would be an
extraordinary procedure — provided for by the Constitution but granted only a
handful of times since 1900. However, absent this, Mr. Davis faces an
extraordinary and obviously final injustice.
This threat of injustice has come about because the lower courts have misread
the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write
when I was in Congress. As a member of the House Judiciary Committee in the
1990s, I wanted to stop the unfounded and abusive delays in capital cases that
tend to undermine our criminal justice system.
With the effective death penalty act, Congress limited the number of habeas
corpus petitions that a defendant could file, and set a time after which those
petitions could no longer be filed. But nothing in the statute should have left
the courts with the impression that they were barred from hearing claims of
actual innocence like Troy Davis’s.
It would seem in everyone’s interest to find out as best we can what really
happened that night 20 years ago in a dim parking lot where Officer Mark
MacPhail was shot dead. With no murder weapon, surveillance videotape or DNA
evidence left behind, the jury that judged Mr. Davis had to weigh the
conflicting testimony of several eyewitnesses to sift out the gunman from the
onlookers who had nothing to do with the heinous crime.
A litany of affidavits from prosecution witnesses now tell of an investigation
that was focused not on scrutinizing all suspects, but on building a case
against Mr. Davis. One witness, for instance, has said she testified against Mr.
Davis because she was on parole and was afraid the police would send her back to
prison if she did not cooperate.
So far, the federal courts have said it is enough that the state courts reviewed
the affidavits of the witnesses who recanted their testimony. This reasoning is
misplaced in a capital case. Reading an affidavit is a far cry from seeing a
witness testify in open court.
Because Mr. Davis’s claim of innocence has never been heard in a court, the
Supreme Court should remand his case to a federal district court and order an
evidentiary hearing. (I was among those who signed an amicus brief in support of
Mr. Davis.) Only a hearing where witnesses are subject to cross-examination will
put this case to rest.
Although the Supreme Court issued a stay of execution last fall, the court
declined to review the case itself, and its intervention still has not provided
an opportunity for Mr. Davis to have a hearing on new evidence. This has become
a matter of no small urgency: Georgia could set an execution date at any time.
I am a firm believer in the death penalty, but I am an equally firm believer in
the rights and protections guaranteed by the Constitution. To execute Troy Davis
without having a court hear the evidence of his innocence would be
unconscionable and unconstitutional.
served in the House of Representatives
from 1995 to 2003
and was the
United States attorney
for the Northern District of Georgia
from 1986 to 1990.
Death Penalty Disgrace,
The death penalty
in the United States
Wed Apr 16, 2008
(Reuters) - The U.S. Supreme Court on Wednesday rejected a challenge to the
lethal three-drug cocktail used in most U.S. executions during the past 30
years. This cleared the way for a resumption of executions halted since last
September pending the court's decision.
Following are some facts and figures about the death penalty in the United
States since 1977, when executions resumed following the lifting of a ban on the
practice by the U.S. Supreme Court the previous year.
- There have been 1,099 executions in the United States since 1977. The peak
year was 1999, when 98 were carried out while no inmates were put to death in
1978 and 1980.
- 42 people were executed in the United States in 2007, the lowest number since
1994 when 31 were put to death.
- 2005, the last year for which data is available, saw 128 death sentences
imposed, the lowest number over the past three decades. The peak year was 1996
when 317 were handed down.
- The death penalty is sanctioned by 37 of the 50 states and the U.S. government
and the military. Lethal injection is the main method used by all of the death
penalty states except for Nebraska which uses the electric chair.
- The standard method involves administering three separate chemicals: sodium
pentothal, an anesthetic to make the inmate unconscious; pancuronium bromide,
which paralyzes all muscles except the heart; and then potassium chloride, which
stops the heart, causing death.
- Texas has been by far the most active death penalty state in the post-1976 era
with 405 executions. Virginia is a distant second at 98.
- Amnesty International this week issued a report that ranked the United States
fifth in the world in the number of executions in 2007, behind China (470), Iran
(317), Saudi Arabia (143), Pakistan (135). These five countries accounted for 88
percent of all known executions.
(Sources: Death Penalty Information Center,
Texas Department of Criminal
Amnesty International, Reuters)
(Reporting by Ed Stoddard,
editing by David Storey)
FACTBOX: The death
penalty in the United States,
Disparity in Executions Grows
as Texas Bucks Trend
The New York Times
By ADAM LIPTAK
death penalty bombshells — a de facto national moratorium, a state abolition and
the smallest number of executions in more than a decade — have masked what may
be the most significant and lasting development. For the first time in the
modern history of the death penalty, more than 60 percent of all American
executions took place in Texas.
Over the past three decades, the proportion of executions nationwide performed
in Texas has held relatively steady, averaging 37 percent. Only once before, in
1986, has the state accounted for even a slight majority of the executions, and
that was in a year with 18 executions nationwide.
But enthusiasm for executions outside of Texas has dropped sharply. Of the 42
executions in the last year, 26 were in Texas. The remaining 16 were spread
across nine other states, none of which executed more than three people. Many
legal experts say the trend will probably continue.
Indeed, said David R. Dow, a law professor at the University of Houston who has
represented death-row inmates, the day is not far off when essentially all
executions in the United States will take place in Texas.
“The reason that Texas will end up monopolizing executions,” he said, “is
because every other state will eliminate it de jure, as New Jersey did, or de
facto, as other states have.”
Charles A. Rosenthal Jr., the district attorney of Harris County, Tex., which
includes Houston and has accounted for 100 executions since 1976, said the Texas
capital justice system was working properly. The pace of executions in Texas, he
said, “has to do with how many people are in the pipeline when certain rulings
The rate at which Texas sentences people to death is not especially high given
its murder rate. But once a death sentence is imposed there, said Richard C.
Dieter, the executive director of the Death Penalty Information Center,
prosecutors, state and federal courts, the pardon board and the governor are
united in moving the process along. “There’s almost an aggressiveness about
carrying out executions,” said Mr. Dieter, whose organization opposes capital
Outside of Texas, even supporters of the death penalty say they detect a change
in public attitudes about executions in light of the time and expense of capital
litigation, the possibility of wrongful convictions and the remote chance that
someone sent to death row will actually be executed.
“Any sane prosecutor who is involved in capital litigation will really be
ambivalent about it,” said Joshua Marquis, the district attorney in Clatsop
County, Ore., and a vice president of the National District Attorneys
Association. He said the families of murder victims suffered needless anguish
during what could be decades of litigation and multiple retrials.
“We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people
sentenced to death. People really do question capital punishment. The whole idea
of exoneration has really penetrated popular culture.”
As a consequence, Mr. Dieter said, “we’re simply not regularly using the death
penalty as a country.”
Over the last three years, the number of executions in Texas has been relatively
constant, averaging 23 per year, but the state’s share of the number of total
executions nationwide has steadily increased as the national totals have
dropped, from 32 percent in 2005 to 45 percent in 2006 to 62 percent in 2007.
The death penalty developments that have dominated the news in recent months are
unlikely to have anything like the enduring consequences of Texas’ vigorous
commitment to capital punishment.
A Supreme Court case concerns how to assess the constitutionality of lethal
injection protocols. While it is possible that states may have to revise the
ways they execute people, executions will almost certainly resume soon after the
court’s decision, which is expected by June.
Similarly, New Jersey’s abolition of the death penalty last week and Gov. Jon
Corzine’s decision to empty death row of its eight prisoners is almost entirely
symbolic. New Jersey has not executed anyone since 1963.
And while the total number of executions in 2007 was low, it would have been
similar to those in recent years but for the moratorium, if extrapolated to a
There do seem to be slight stirrings suggesting that other states might follow
New Jersey. Two state legislative bodies — the House in New Mexico and the
Senate in Montana — passed bills to abolish capital punishment, and in Nebraska,
the unicameral legislature came within one vote of doing so.
Texas has followed the rest of the country in one respect: the number of death
sentences there has dropped sharply.
In the 10 years ending in 2004, Texas condemned an average of 34 prisoners each
year — about 15 percent of the national total. In the last three years, as the
number of death sentences nationwide dropped significantly, from almost 300 in
1998 to about 110 in 2007, the number in Texas has dropped along with it, to 13
— or 12 percent.
Indeed, according to a 2004 study by three professors of law and statistics at
Cornell published in The Journal of Empirical Legal Studies, Texas prosecutors
and juries were no more apt to seek and impose death sentences than those in the
rest of the country.
“Texas’ reputation as a death-prone state should rest on its many murders and on
its willingness to execute death-sentenced inmates,” the authors of the study,
Theodore Eisenberg, John H. Blume and Martin T. Wells, wrote. “It should not
rest on the false belief that Texas has a high rate of sentencing convicted
murderers to death.”
There is reason to think that the number of death sentences in the state will
fall farther, given the introduction of life without the possibility of parole
as a sentencing option in capital cases in Texas in 2005. While a substantial
majority of the public supports the death penalty, that support drops
significantly when life without parole is included as an alternative.
Once an inmate is sent to death row, however, distinctive features of the Texas
justice system kick in.
“Execution dates here, uniquely, are set by individual district attorneys,”
Professor Dow said. “In no other state would the fact that a district attorney
strongly supports the death penalty immediately translate into more executions.”
Texas courts, moreover, speed the process along, said Jordan M. Steiker, a law
professor at the University of Texas who has represented death-row inmates.
“It’s not coincidental that the debate over lethal injections had traction in
other jurisdictions but not in Texas,” Professor Steiker said. “The courts in
Texas have generally not been very solicitous of constitutional claims.”
Indeed, the Supreme Court has repeatedly rebuked the state and the federal
courts that hear appeals in Texas capital cases, often in exasperated language
suggesting that those courts are actively evading Supreme Court rulings.
The last execution before the Supreme Court imposed a de facto moratorium
happened in Texas, and in emblematic fashion. The presiding judge on the state’s
highest court for criminal matters, Judge Sharon Keller, closed the courthouse
at its regular time of 5 p.m. and turned back an attempt to file appeal papers a
few minutes later, according to a complaint in a wrongful-death suit filed in
federal court last month.
The inmate, Michael Richard, was executed that evening.
Judge Keller, in a motion to dismiss the case filed this month, acknowledged
that she alone had the authority to keep the court’s clerk’s office open but
said that Mr. Richard’s lawyers could have tried to file their papers directly
with another judge on the court.
U.S. Disparity in Executions Grows as Texas Bucks Trend,
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