What We Can Learn from the National Moratorium

John Holdridge, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION'S CAPITAL PUNISHMENT PROJECT

Executions in the United States have essentially been put on hold in the aftermath of the Supreme Court's announcement in late September that it would decide the constitutionality of the lethal injection protocol used by almost all death-penalty states. With Texas leading the way, there is a good chance that few if any executions will take place until the Court issues a decision next spring.

This historic suspension of capital punishment across the nation presents a unique opportunity to ask ourselves a few simple questions: Why does this matter? What does this de facto moratorium mean for our society? And what is wrong with the nation's most severe sanction?
For starters, the moratorium means that, for the time being, we can rest assured knowing that no innocent people will be executed by our government; It means that, between now and next spring, the U.S. will at long last be sending the right message to the world – that cool, deliberate and lethal violence cannot be justified and that the condemned are human beings capable of reformation.

Finally, the moratorium offers some simple truths that illustrate why the government must not have the power to decide who lives and who dies:
We do not need the death penalty to keep us safe. The inmates whose lives are now at least temporarily spared do not pose any danger to society - they will remain in prison, many in solitary confinement. Furthermore, the moratorium will not increase the murder rate based on credible studies showing the death penalty has no deterrent effect. That's why a 1995 survey of U.S. police chiefs found that a majority does not believe that the death penalty is an effective law enforcement tool.

We don't need capital punishment to exact retribution against offenders. Life imprisonment without the possibility of release is clearly retributive. More than half the countries in the world have abolished the death penalty in law or practice; 12 states in the U.S. do not have capital punishment; and more than two-thirds of the counties in U.S. have never returned a death sentence. The people living in these places have accepted that life imprisonment constitutes sufficient retribution.

Capital punishment is an extraordinary waste of taxpayer dollars. An act of state-sanctioned killing costs far more than life without the possibility of parole. And that is true even though society is getting the death penalty on the cheap as a result of woefully underfunded public defender programs in almost all death-penalty states. Tragically, the death penalty is often imposed not on the worst defendants, but on the defendants with the worst lawyers.
Capital punishment is a failed government program and a colossal stain on our criminal justice system. The administration of capital punishment in this country is fraught with error. Since 1973, more than 123 innocent death-row inmates have been exonerated; in addition, eight men have been executed even though there is a very good chance they were innocent. Moreover, despite popular myths, DNA testing cannot ensure that only the guilty are executed because DNA evidence is available in only 10 percent of murder cases.

The death penalty is arbitrary and capricious. Receiving a death sentence is like being struck by lightning - only 2% of all murders are punished with the death penalty, even in death-penalty states. Furthermore, the use of capital punishment is tainted by racial, economic and geographic discrimination. In general, a defendant is four and a half times more likely to get the death penalty if he kills a white person than if he kills a black person. And virtually everyone on death row is poor.

The current de facto moratorium on the death penalty presents a rare opportunity to reflect on why we remain the only advanced Western democracy to retain this punishment. If we seize this moment, we will reach only one conclusion: there is no good reason to have capital punishment and many good reasons not to.

Good Enough for Govt Work--Even if a Life is at Stake

There are many reasons to be disappointed by the Washington Supreme Court's opinion affirming Robert Yates' death sentence. After a 5-4 split in Cross where the four justices described Washington's death penalty scheme as broken and beyond repair, in Yates all but one justice somehow found that the death penalty was now working properly. I defy anyone to show me where, when, and how the machinery of death was fixed.

Just as disappointing was the court's discussion about the database used in conducting proportionality review. This database consists of reports--required in every aggravated murder conviction, whether or not death is sought or imposed--designed to enable the court to compare both the crime and the mitigation. Yates argued that the database was insufficient and incomplete, something you'd think a Supreme Court justice would care about--given that a life is at stake.

Here's how the Court summarized the issue: Finally, Yates argues that this court cannot meaningfully engage in the proportionality review mandated in RCW 10.95.130(2)(b) because of the incompleteness and inaccuracy of the trial judge reports. In Yates's view, the defects in the set of reports result in a violation of his due process rights under the Fourteenth Amendment. This argument was punctured in this court's Cross opinion. There, describing the trial judge reports database as "now overwhelmingly complete," the court rejected the claim that the state of the database precluded meaningful proportionality review: "There is an ample amount of detail we can use to compare this case with the others collected, and we have no reason to think that the omitted reports would not be consistent with the completed ones."

The Court's stamp of approval is stunning. Certainly, the Court would be correct if proportionality review focused only on the crime. The reports do describe the crimes of conviction with detail.

However, there is virtually no information about the person--the other half of the equation--in any of the reports. Most reports just leave those sections blank. In other words, we don't know in those other cases if the mitigation that made the difference between life and death was mental illness, childhood trauma, the use of drugs, a desire to plead guilty, or any other factor.

What's going on here? Nationally, two mitigating factors--juvenile status and mental retardation--are now complete bars to the death penalty as part of the 8th Amendment's evolving standards of decency review. The United States Supreme Court reviewed the history of how legislatures, prosecutors, and juries viewed this type of information and determined it was cruel and unusual to execute anyone in either of these two categories--regardless of the facts of the crime.

Doesn't the Washington Supreme Court want to know what prosecutors and jury's in this state view as mitigating? What are they afraid of finding out? Or, is the court saying that it would be too hard to compile this information--as long as the report has some information in it, the report is good enough for government work. That position fails us all.

Lethal Incompetence

The doctor had more than twenty malpractice suits filed against him.
Two hospitals had revoked his privileges. He testified that he had dyslexia
and sometimes confused drug dosages. This same doctor also supervised
the lethal injections of fifty-four inmates in Missouri over a decade.
For ten years, the public, the press, and the condemned inmates
themselves did not know about the supervising executioner’s qualifications
in Missouri.

Don't we deserve to know who's on the killing team here, too?

Annual Meeting this Saturday!!!

This year's WCADP conference will be on October 27th at Seattle University Law School, Room 109.

Doors will open at 9:00AM (with beverages and a small selection of breakfast items). Conference will run from 9:30AM to 11:30AM. This year's focus will be on constitutional challenges to the methods of execution--focusing on hanging and lethal injection, the two methods used in Washington.

Our faculty features Todd Maybrown, an experienced capital defense attorney who has undertaken an extensive investigation into our state's methods of execution. This subject is particularly timely given the United States Supreme Court's recent decision to decide teh legality of lethal injection.

In addition, we will have an opportunity to disscuss ways that we can mobilize to prevent another killing in our name.

The annual meeting will follow the conference. All our invited to attend--we'll be electing officers and selecting members of the steering committee.

Rumors of the Death of the Death Penalty in Washington

Rumors of the Demise of the Death Penalty Are Greatly Exaggerated.

In Spring 2002, I was meeting with a number of young men sentenced to death awaiting their fate in the state prison located in Livingston, Texas. While waiting for guards to transport my next client, a young man wearing the prison-issued, white jump-suit with the large, unmistakable “DR” (death row) on the back waved me over to ask me a question. “Do you think the United States Supreme Court will prevent the execution of juveniles this term? I heard that they were going to let Napoleon Beazley die because his case is too political, but then they were going to take a case right after he’s killed.” I told him that I hoped they would take a case--any case--immediately. “I hope so, too. I was only 17 when I was convicted of murder. Your guy is here. Thanks for talking to me. My name is Toronto Patterson.”

Next Term, the United States Supreme Court accepted Christopher Simmons’ case and later held that the U.S. Constitution prohibited the execution of juveniles.

For some time now and from various sources (politicians, prosecutors, defense attorneys, and fellow abolitionists), I have heard that we have achieved a de facto abolition of the death penalty in Washington. I hope so, but for the sake of eight men currently living in Walla Walla under a sentence of death, I do not believe we can rest so easy.

There are, of course, reasons to be optimistic. No new person has been sentenced to death since 2000. The state penitentiary has not carried out an execution since James Elledge volunteered in 2001--and it has been since 1984 when the last person who did not volunteer for a death sentence (Charles Campbell) was hung in our names.

However, there are danger signals. After the 9th Circuit vacated Cal Brown’s death sentence, the United States Supreme Court reversed that decision and reinstated death—one of several cases coming out of the 9th Circuit where the increasingly conservative Supreme Court took the lower appellate court to task for being too liberal. It seems to have worked. Just last week, the 9th Circuit found no error with Darold Stenson’s trial or death sentence. Trust me, there were many worthy errors to choose from.

After the Washington Supreme Court narrowly affirmed Davya Cross’ death sentence in 2006, last week they affirmed Robert Yates’ by an 8-1 margin. What’s most concerning is that the four justices who in Cross’ case argued that the death penalty was arbitrary, capricious, and broken appear to have given up the fight.

Despite control of both the legislative and executive branches in Olympia, very few officials in Olympia have the courage to speak of abolition—not when we issues like the future of the viaduct and the Sonics command attention.

At the end of the day, we know that rumors of the death penalty’s demise mean nothing. We cannot wait and hope that the arbitrariness which defines the death penalty continues to work in our favor. Because sometimes it does not. I’d tell you to ask Napoleon or Toronto, but you can’t. They are dead.

A Failure of Vision--The Upcoming King Co. Prosecutor's Election

In 2003, Kamala D. Harris ran for the San Francisco District Attorney position and promised never to seek the death penalty. Shortly after her election, she kept her promise, deciding not to seek the death penalty in a high profile case involving the murder of a police officer, Isaac Espinoza. Instead, she sought and received a life without parole sentence for killer, David Hill.

This November, Harris is seeking re-election. Once again, she is promising not to seek a death sentence in any case that crosses her desk. Harris is instead running on a platform that involves balancing prosecutions of violent crimes with rehabilitation for lesser offenders. She is unopposed. The citizens of San Francisco have learned that they can live without the death penalty, despite the fact that California has the largest death row in the country.

Here, in King County, a new prosecutor will be elected in November. Unfortunately, both candidates support the death penalty although they each promise to be careful in deciding who should live and who should die.

This election could have been an opportunity for a candidate to step up and promise to take the money used to seek the execution of a fellow human being and use it instead for crime prevention efforts and to assist the family of victims of violent crime. This election could have been an opportunity to explain why not seeking the death penalty is good public policy and the only decent way to administer justice.

Perhaps, the candidates felt that the public would not support such a position. If so, they should have looked to San Francisco DA Harris. She could have told them that the people will support a true leader.