"Don't you worry about it," the Oklahoma prosecutor said to the defense attorney. "We're gonna needle your client. You know, lethal injection, the needle. We're going to needle Robert."
By Barbara McAtlin
When Governor George Ryan said, "there is no margin for error when it comes to putting a person to death," and called for a special panel to study the Illinois' capital punishment system while he suspended executions, he fueled a movement. People all over the country are questioning the use of the death penalty. Is it fair? Is it racist? Is it "closure" or is it vengeance?
Within the past few months, at least 5 states actively considered moratoriums or bans on capital punishment. Although these are thought of as long shots, the anti-death penalty movement was revived when the Illinois decision was announced. Illinois is the first of the 38 death penalty states to stop executions while its system is examined. Thirteen inmates have been released from death row in Illinois since 1987; in that same time, 12 were executed. Death penalty opponents say these numbers expose the serious flaws in the criminal justice system. In most of the Illinois cases, prosecutors admitted they had convicted the wrong man after they were confronted with DNA evidence, new witnesses or confessions from others. In other cases, convictions were thrown out during the appeals process and prosecutors have not decided whether or not to pursue a retrial.
Illinois is not the only state with criminal justice system problems. Recently a man in California was released after having spent 19 years in prison for murder. Prosecutors who had unsuccessfully sought a death sentence said they were no longer sure he was guilty after the witnesses who had testified against him recanted.
Since 1973, 87 people have been freed from death row. The American Bar Association called for a nationwide moratorium in 1997 after raising concerns about racism and the availability of proper legal representation for the poor. Nebraska lawmakers approved a moratorium citing racial disparity in sentencing only to have Governor Mike Johanns veto it. Indiana booted out an abolishment effort, and New Mexico lawmakers never let the measure get out of the committee stage. New Jersey and Pennsylvania rejected a moratorium while Kentucky and New Hampshire are considering one. Legislative bills calling for delays have also been proposed, but not enacted, in Connecticut, Maryland, Montana, North Carolina, and Washington State as well.
Stephen Dear, in his ongoing effort to try to place a moratorium on executions in North Carolina, found himself dealing with an unlikely group of politicians. The Durham City Council's Public Works Committee normally deals with zoning variances and public utilities, not issues like the capital punishment. But, as Durham has two standing committees through which all resolutions must get through before they can get to the City Council, the Public Works Committee got it. They approved it. They passed it onto the City Council. They approved it. Durham is now on the record as calling for a moratorium on executions in North Carolina. Chapel Hill, Carrboro and Orange County have since joined them. At the least, these smaller political interest groups want the fairness of capital punishment studied. Hundreds of church groups, small towns and cities, labor organizations, religious groups, legal associations, social service agencies, human rights groups, libertarian organizations and business groups have passed resolutions calling for a moratorium.
Victories such as Durham's are small victories, but they add up. The anti-death penalty movement, in its quest to shut death chamber doors permanently, is winning hundreds of these small battles on the local political scene. With public opinion polls showing that 61 percent of Americans support the death penalty, some groups are trying to use death penalty moratoriums to erode public confidence in capital punishment. Although death penalty opponents know they can't change the polls anytime soon, they would like to see the pace of executions slow or stop while the ultimate punishment is being studied.
According to Maryland's Quixote Center, there are currently moratorium groups in Arizona, Arkansas, Florida, Illinois, Maryland, Nebraska, New Jersey, New York, North Carolina, Pennsylvania, Texas, Virginia and Washington State.
Although wrongful convictions in Illinois have captured the attention of the media, anti-death penalty groups and average citizens, Florida has had 20 death row cases reversed, more than any other state. With the stop on executions in Illinois and moratorium bills in other states, the death penalty has been the focus of intense scrutiny in Florida and the other 37 states with the death penalty still on their books.
Public outrage over wrongful convictions -- and the media's reporting of them -- has changed the outlook of many long-standing death penalty supporters. One outspoken voice calling for a moratorium is that of Chicago Mayor Richard M. Daley. Daley was the Cook County State's attorney in the 1980s, and prosecuted some of the death penalty cases that were overturned. He says he doesn't believe prosecutors did anything improper, but defense lawyers were not only under-financed but also often incompetent. While Illinois seems to have become the center of the death penalty debate, the issue is gaining speed around the country where, until recently, it was regarded as a settled point in American politics.
"Don't you worry about it," said the Oklahoma prosecutor to the defense attorney. "We're gonna needle your client. You know, lethal injection, the needle. We're going to needle Robert."
Oklahoma almost did execute Robert Miller. Miller had spent nine years on death row. Six of those years the state of Oklahoma had DNA test results that proved his sperm was not that of the man who raped and killed a 92-year-old woman. The prosecutor said the DNA tests only proved that a second man had committed the crime along with Miller. With this scientific evidence and an unstoppable defense attorney, Miller was released and another man was indicted.
With stories like Robert Millers' abounding, it should change the way one looks at the death penalty and the whole criminal justice system. Forensic fraud, mistaken eyewitness or victim identifications, inept "big-eye" criminal investigations that zero in on one suspect while forsaking all others, jailhouse snitches willing to say anything for a reduced sentence, and incompetent defense attorneys.... These kinds of stories can only make a reasonable person conclude that many innocent people are incarcerated, and some people have been wrongly executed.
The list of criminal justice system flaws is actually much longer than this, but some numbers tell a most grievous story: In the 24 years since the death penalty was reinstated, there have been about 620 executions. Eighty-seven condemned prisoners -- one for every seven executed -- have had their convictions overturned by exonerating evidence. In 8 of these cases, the evidence was from DNA. One obvious deduction from these numbers is that at least some of those 620 people executed were, without a doubt, innocent. That is the reasoning behind Republican Governor George Ryan's imposing the Illinois moratorium on executions.
Conservative George Will also came out against the death penalty saying, "The argument against it, the conservative argument against capital punishment is that it's a government program and will be messed up. And I just direct our viewers' attention to a new book called 'Actual Innocence' by three people associated with the Innocence Project at Cardozo Law School. And what they document in terms of error, fraud, incompetence and all the rest is sobering.... From the evidence, it seems to me, a reasonable inference is that innocent people have been executed."
The National Death Penalty Moratorium Act of 2000 (S. 2463) would suspend executions in the U.S. immediately while a national commission reviews the death penalty. Before any more executions are carried out, the federal government as well as every state with a death penalty would be obliged to make absolutely certain that a sentence of death is imposed with justice, fairness and due process. The moratorium on executions would be effective upon enactment of the bill and ends only after Congress considers the Commission's final report, enacts or rejects its recommendations, and repeals the suspension of executions provision of the bill.
The National Commission on the Death Penalty would have 15 members: 3 federal or state prosecutors, 3 capital punishment defense lawyers, 2 current or former federal or state judges, 2 federal or state law enforcement officials and 5 people from the public or private sector with knowledge or expertise, by experience or training, in the matters to be studied by the Commission. Membership will be balanced in opinion -- whether supporting or opposing the use of the death penalty. Together they would study all matters relating to the administration of the death penalty to determine whether its administration is consistent with constitutional principles and requirements of fairness, justice, equality and due process.
The Commission would also be required to include racial disparities, income of those sentenced to death as opposed to those not sentenced to death for the same crime, the adequacy of representation for capital defendants and whether innocent persons have been sentenced to death and why these wrongful convictions happened. They would also study whether courts are adequately exercising independent judgment on the merits of constitutional claims in State post-conviction and Federal habeas corpus proceedings and whether mentally retarded people and those who were under the age of 18 at the time of their offenses should be sentenced to death after conviction for death-eligible offenses. The commission would look into procedures that would ensure that people sentenced to death would have access to forensic evidence and modern testing of such evidence, including DNA testing, when such testing could result in new evidence of innocence, and any other law or procedure to ensure that death penalty cases are administered fairly and impartially, in accordance with the Constitution.
Under the Moratorium Act of 2000, federal defendants would be guaranteed access to DNA testing, and states would not receive DNA-related federal grants unless they made the testing available to state inmates. One of the measure's more controversial provisions would allow inmates to sue in federal court if a request for DNA testing is denied.
U.S. Senator Russ Feingold (D-WI) INTRODUCES THE NATIONAL DEATH PENALTY MORATORIUM ACT OF 2000
"...If a particular aircraft crashed one out of every eight flights, Congress would act immediately to ground it. But as New York public defender Kevin Doyle says in the book, Actual Innocence, that is about what is happening now with the death penalty in this country. Since the reinstatement of the modern death penalty, 87 people have been freed from death row because they were later proven innocent. That's a demonstrated error rate of 1 innocent person for every 7 persons executed. When the consequences are life and death, we need to demand the same standard for our system of justice as we would for our airlines.
"Both supporters and opponents of the death penalty should be concerned about the flaws in the system by which we impose sentences of death. More than 3,600 inmates sit on state and federal death rows around the country, while it becomes increasingly clear that innocent people are being put to death.
"A 1987 study found that between 1900 and 1985, 350 people convicted of capital crimes in the United States were innocent of the crimes charged. Some escaped execution by minutes. Regrettably, according to researchers Radelet and Bedau, 23 actually had their lives taken from them in error.
"In Illinois, since 1973, 13 innocent people have been freed from death row in the same time that 12 were executed. Governor George Ryan, a supporter of the death penalty, has done two things in response: He has effectively imposed a moratorium on executions and established a blue ribbon commission to review the administration of capital punishment in Illinois. Governor Ryan and I are, of course, from different political parties, but we both recognize that the system by which we impose the death penalty is broken.
"Modern DNA testing of forensic evidence led to the exoneration of five of the 13 innocents freed from Illinois' death row and eight of the 87 men and women who have been freed from death row nationwide since the 1970's. But, Illinois and New York are the only states that currently provide some measure of access to DNA testing for death row inmates. My distinguished colleague from Vermont, Senator Leahy, has introduced a bill, the Innocence Protection Act, of which I am a co-sponsor, that would ensure access to DNA testing for all inmates on death row in the federal system and the 38 states that impose the death penalty. That bill is an important initiative to help ensure that innocents are not condemned to death row. I hope my colleagues will join Senator Leahy in moving this bill forward.
"But, as Governor Ryan and others have recognized, flaws in our system unfortunately go well beyond access to DNA testing. As Barry Scheck, Peter Neufeld and Jim Dwyer note in their new book, Actual Innocence, "Sometimes eyewitnesses make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps truth. Lab tests are rigged. Defense lawyers sleep.
"Indeed, Scheck and Neufeld note that eyewitness error is the single most important cause of wrongful convictions. As important as DNA testing is, it is only the first step in addressing the host of problems in the administration of capital punishment.
"It is time for the Congress to take the lead and declare once and for all that it is unacceptable to execute an innocent man or woman. It is a central pillar of our criminal justice system that it is better that many guilty people go free than that one innocent should suffer. Sadly, history has demonstrated that time and again, America has actually brought innocence itself to the bar and condemned it to die. That history now demonstrates that even in America, innocence itself has provided no security from the ultimate punishment.
"Most insidiously, the ghosts of institutional racism still haunt our courthouses. They intrude when lawyers select jurors, during the presentation of evidence, when the prosecutor contrasts the race of the victim and defendant, and when juries deliberate. The evidence mounts that the United States applies the death penalty differently to people of different races.
"The numbers tell the story: Although African-Americans constitute only 13% of the American population, since the Supreme Court reinstated the death penalty in 1976, African-Americans account for 35% of those executed, 43% of those who wait on death row nationwide, and 67% of those who wait on death row in the federal system. Although only 50% of murder victims are white, fully 84% of the victims in death penalty cases were white. Since 1976, America has executed 11 whites for killing an African-American, but has executed 144 African-Americans for killing a white.
"Governor Ryan and Illinois serve as a model for the Congress and the Nation. The flaws in the Illinois criminal justice system I am sure are not unique. Problems like convicting the innocent, racial disparities in the application of the death penalty, and inadequacy of defense counsel have plagued the administration of capital punishment across the Nation. That is why we need a national review of the death penalty and a suspension of executions until we can be sure that death row inmates across the country have been given the full protections of justice, fairness, and due process."
Governor Ryan is certainly not alone in questioning the state of the death penalty. In the last few months, people of all political stripes have been stepping forward to say there's a problem and it's now time to do something about it.
Columnist George Will recently wrote that serious defects exist in the criminal justice system by which we impose capital punishment. In a recent column in The Washington Post, Mr. Will wrote that accounts of the wrongly convicted compel the conclusion that "many innocent people are in prison, and some innocent people have been executed." He also wrote that even though he continues to believe that capital punishment may be a deterrent to crime, it can only be an effective deterrent if the criminal justice system operates properly to convict and sentence those who actually committed the offense, not innocent people.
"The Reverend Pat Robertson, a founder of the Christian Coalition and a long-time supporter of the death penalty, has also recognized that something is terribly amiss in the administration of the death penalty. At a recent conference at the College of William and Mary, Reverend Robertson noted that the death penalty has been administered in a way that discriminates against minorities and the poor who cannot afford high-priced defense attorneys. Reverend Robertson said, 'these are all reasons to at least slow down.' He also said, 'I think a moratorium would indeed be very appropriate.'
"Across the country, other state and local legislative bodies have also urged pause and reflection. At least 17 city and county governments have now passed resolutions supporting a moratorium on executions. And resolutions have been offered in the legislatures of several states, including Alabama, Maryland, New Jersey, Oklahoma, Pennsylvania and Washington state. In 1997, the American Bar Association adopted a resolution calling for a nationwide moratorium on executions. Recently, the U.S. Catholic Conference, the Union of American Hebrew Congregations and a number of other religious organizations called on the President to suspend the scheduling of executions and initiate a review of the administration of capital punishment at the federal level. These local governments and organizations have recognized that a little time and a little reflection are not too much to ask when the lives of innocent people may hang in the balance.
"Congress, too, should recognize that a little time and reflection are not too much to ask. That is why I ask my colleagues to support the bill I introduce today. This bill simply calls on the federal government and all states that impose the death penalty to suspend executions while a national commission reviews the administration of the death penalty. The Commission would study all matters relating to the administration of the death penalty at the federal and state levels to determine whether it comports with constitutional principles and requirements of fairness, justice, equality and due process. Congress would review the Commission's final report and then enact or reject its recommendations. Those jurisdictions that impose capital punishment could resume executions only after Congress considers the Commission's final report and repeals the suspension of executions provision of the bill.
"This means that before executing even one more person, the federal government and the states must ensure that not a single innocent person will be executed, eliminate discrimination in capital sentencing on the basis of the race of either the victim or the defendant, and provide for certain basic standards of competency of defense counsel.
"Questions about the administration of the death penalty can only be answered with an impartial, independent review. The blue ribbon commission called for in my bill would include prosecutors, defense attorneys, judges, law enforcement officials and other distinguished Americans with experience or expertise in this issue. It would be a balanced commission -- not chock full of death penalty foes or death penalty supporters but would represent different viewpoints on the issue. Other nations, including some of our closest allies, have also established national commissions to review the death penalty. In the 1950's, Great Britain created the Royal Commission on Capital Punishment and the Canadian Parliament established a joint committee of their Senate and House to review capital punishment. Now, almost 50 years later, I believe it is time for the United States to undertake a national review. We should be the leader on issues of justice.
"It's been almost 25 years since the reinstatement of the death penalty and we still don't know how innocent people got on death row and how to prevent it from happening again. That's embarrassing for the world's greatest democracy. My bill is a step in the right direction. And the time is now. Our Nation has come to the point where the machinery of death is well greased and the pace of executions has accelerated. Last year, our nation hit an all-time high for total executions in any one year since 1976. We had 98 executions last year in America. And this year, we're already on track to meet or exceed that same high rate.
"Before our government takes the life of even one more citizen, it has a solemn responsibility to every American to prove that its actions are consistent with our nation's fundamental principles of justice, equality and due process. Before carrying out an irreversible punishment, the government must carefully consider the tough questions surrounding capital punishment.
"...Let us slow the machinery of death to ensure that we are being fair. Let us reflect to ensure that we are being just. Let us pause to be certain we do not kill a single innocent person. This is really not too much to ask for a civilized society.
"I urge my colleagues to join me and my distinguished colleague, Senator Levin, in sponsoring the National Death Penalty Moratorium Act of 2000. Thank you."
Illinois Governor George Ryan, a death penalty supporter, has publicly backed the Innocence Protection Act. He said, "I don't know of anything that's really more important if we're going to have an America with the kind of justice system that works and works well. I don't see who could be against it, frankly."
Darby Tillis was released from death row after his fifth trial on two murder charges finally gained an acquittal. A DNA test freed Ronald Jones from a death sentence for raping and murdering a young mother. Gary Gauger escaped execution when an appeals court overturned his conviction for slitting his parents' throats. All three men stood before Congress to ask for a nationwide halt to executions until stronger and better safeguards were in place that would ensure that innocent people aren't being executed. Tillis said, "You cannot bring a man back from the grave after you find those errors."
Gary Gauger was convicted of murdering his parents on their Illinois farm in 1993. Police told him they had evidence that linked him to the murders and he made a hypothetical statement about blacking out that was used against him as a confession. A state appeals court overturned his conviction in 1996. Two Wisconsin gang members have since been charged with the murders.
Ronald Jones was a homeless, alcoholic panhandler when he confessed to and was convicted for the killing of a mother of three in 1985. He later recanted, saying he had made up a story to get the police to stop beating him. He was released from death row last year after DNA testing proved he wasn't the murderer.
Darby Tillis and Perry Cobb were arrested for the murder of two men during a 1977 robbery in Chicago. It took three trials to send them to death row because of a lack of physical evidence and shaky witness testimony. After they spent almost ten years in prison, their convictions were overturned. Their retrial ended with a hung jury and a judge finally acquitted the men in 1987.
Anthony Porter, who came within two days of being executed, won his release from prison after spending 16 years on death row. Journalism students from Northwestern University helped prove that another man committed the double murder for which Porter was convicted.
Representative Jesse Jackson Jr. has also sponsored legislation in Illinois that would immediately suspend all executions in the United States for seven years. In order for states to get the necessary Justice Department permission to resume executions, they would have to provide access to DNA testing to anyone on death row who asks for it. Other measures are pending in the House and Senate that also seek protections for capital defendants but, unfortunately, they do not call for a moratorium. Illinois Governor George Ryan praised Jackson's bill as a step toward "ensuring that everyone accused of a crime is treated fairly before the law."
Amnesty International released a report recently saying that during 1999 over 1,813 people were executed in 31 countries. The group called on the United Nations Commission on Human Rights to take a stand against capital punishment at its annual session in Geneva and urged them to establish a worldwide moratorium on executions. Amnesty International said that these figures only include cases known to them but it would be impossible to give an exact count because many countries deliberately keep the true numbers of those executed secret in order to avoid international condemnation and embarrassment.
The U.S., Iran and Saudi Arabia actually increased their executions in 1999 even though the number of recorded executions globally was less than in 1998. Saudi Arabia officially reported executing 29 people in 1998, but announced that there were 103 executions in 1999. China is by far the world leader for executions. China claimed 1077 executions in 1999, but that number is more than likely far below the true figure. As many as 100 were executed after being sentenced to death by a military court in the Democratic Republic of the Congo. The U.S. executed 98 last year -- 30 more than in 1998. Among these was one young man who was convicted of a murder he committed when he was a juvenile. In the first quarter of 2000 more such people have been executed in the U.S. in clear defiance of international law. According to Amnesty International, the only other country believed to have executed a person during 1999 for a crime committed while he was a juvenile was Iran. Iran recorded 165 executions during 1999, exceeding by far the 66 executions that were recorded in 1998.
Executions in China, the Democratic Republic of the Congo, Iran, Saudi Arabia and the U.S. accounted for 85 per cent of all known executions in 1999. Amnesty International also received reports of hundreds of executions in Iraq but, because of the secrecy surrounding them, they could not determine whether these were judicial or extrajudicial. Some countries such as Cuba, Oman and the United Arab Emirates expanded capital punishment to include non-lethal crimes like drug trafficking and armed robbery. This was done even after the Commission on Human Rights called on states to reduce the number of capital crimes in 1999.
There is a glimmer of hope for a worldwide moratorium, however. At the turn of the last century only three countries in the world had permanently abolished the death penalty. Today, 108 countries have abolished the death penalty either in law or in practice. One hopes this reflects a worldwide trend towards death penalty abolition. Last year, East Timor, Turkmenistan, Ukraine and Bermuda completely abolished the death penalty, and Latvia abolished it for peacetime offenses. In 1999, Russian President Yeltsin commuted more than 700 death sentences. Recently the Philippines announced a moratorium on executions until the end of the year. Since the beginning of 1999, Azerbaijan, Bulgaria, Cyprus, Georgia, Slovakia, Turkmenistan and the UK have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights. This treaty provides for a total abolition of the death penalty and brings the total number of Second Optional Protocol state parties to 42 worldwide. It seems that there is a growing idea that protecting the right to life is truly an international responsibility.
The National Jewish/Catholic Consultation issued a powerful joint statement last year calling for an end to the death penalty. Stating their common understanding of the sanctity of human life, the members of the Consultation declared that they have committed themselves to working together, as well as within their own communities, toward ending the death penalty.
The Moratorium 2000 campaign calls for a moratorium on the death penalty worldwide. So far, more than two million people have signed an online petition, and that number is growing daily. Sister Helen Prejean, a Catholic nun and author of "Dead Man Walking," is leading the Moratorium 2000 effort in the U.S. The campaign hopes to gather at least one million signatures in the U.S. for Sister Prejean to deliver to the UN on December 10, 2000 in honor of Human Rights Day. It is thought that this will be a truly forceful message to our world leaders that the people will not stand by while human beings are executed.
Sources:
Associated Press
APBnews.com
Amnesty International
Washington Post
New York Times
Houston Chronicle
St. Petersburg Times
Richmond Times-Dispatch
Moratorium 2000
Death Penalty Information Center
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