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DEATH IS
DIFFERENT REDUCING THE P A C E Of Executions POLITICALLY ACCEPTABLE
CORRECT EXECUTIONS This section
was written in 1996
by Millard Farmer Joe Nursey Steven Losch Kimellen Tunkle Besides lawyers, there are many people who wish to steer our society away from the use of the death penalty. Each individual case adds fuel to the fire. Every time there is a significant judicial decision or a vote by the legislators to further extend the reach of the death penalty, we revisit the question, “But what can I do?” Many of us once felt we had the answers to guide ourselves and others in the arduous fight to bring fairness and civility to a process that is a priori unfair. Now’s the time to face reality. It’s the time to admit we are only on the threshold of understanding the questions. The answers are, for now, beyond our grasp. Unfortunately, most members of the judiciary, including a majority of the Supreme Court, have not even advanced to the stage of seeking to learn the relevant questions. To most of the judiciary, the death penalty presents a huge traffic jam in the criminal justice system. Most judges seek only to alleviate the traffic jam. Sadly, most of the judicial, leglislative and executive guidance directs the traffic down the wrong way of a one-way street. All of this misdirection is in the guise of correcting the “procedural malfunctions” that have inconvenienced the politics of “clean” executions. For abolitionists, the obvious perennial
question is, “What can be done to stop
this death penalty process?” A more
painful inquiry is, “What should I do?”
For those who are neither opponents or proponent, the perennial question
is, “Which side should I take?
Meanwhile, what should I do?”
These basic questions beg for more specific inquires and precise
answers. DEATH PENALTY AS PART OF THE POLITICAL PROCESS In the search for the elusive questions, we must evaluate the death penalty's impact on the criminal justice system. We must explore how the criminal justice system has been victimized by the death penalty's political aspects. To combat the real problem of violence in our society, the political process has adopted the death penalty as its weapon of choice. The backup to this system is mandatory long term and life sentences to be served in a nonproductive environment. The death penalty is part of the political process. It is not a component of an effective criminal justice system. While the death penalty is veiled as an exclusive function of the criminal justice system; and justified by some as a deterrent to criminal activity; many knowledgeable people are now willing to concede the fallacy. The most that can be said for the death penalty is that it allows victims' families pure retribution, offers society a placebo instead of safety, and serves as a mechanism for local, state and federal politicians (including judges) to curry public favor. Our criminal justice system was designed to avert "an eye-for-an-eye" justice. As a substitute for this type of retribution, our criminal justice system was designed to serve foremost the overall interest of society. Through the death penalty, the political process is rapidly eroding the foundation of our criminal justice system. Our system of government and the open flow of information gives everyone the opportunity to observe whether the death penalty functions as a part of the political process or as a part of an equitable and effective criminal justice system. Let us consider a few relevant questions. Why in the post-Furman [Furman v. Georgia, 408 U.S. 238 (1972)] years have there been more than ninety-three executions in Texas and two executions in California? Why, post-Furman, have there been thirteen persons sentenced to death in Fulton County, Georgia (with Atlanta as the county seat) and 181 persons sentenced to death in Harris County, Texas (with Houston as the county seat)? Why were eight people executed in Louisiana in 1987 and a total of five executed in the years since? These elementary questions invite us to
seek more profound questions. The ultimate question, of course, is how do we
convince the public that executions do not discourage violent and criminal
conduct? THE PACE: WHAT IT MEANS We must look at some of the controlling
factors that determine society's appetite for executions. This is an attempt to
look at both the number of executions that society desires (quantity), and the
type of persons whom society wants to execute (quality). In doing this we must
look at the PACE of the death penalty process. "PACE" is the acronym
we've originated hereto identify "Politically Acceptable, Correct
Executions." The PACE is determined by many variables, depending on the
political subdivision involved. It is the controlling factor of how many
executions will occur and how frequently the executions will take place. KEY DECISIONS The conditions are controlled in part by key decisions: ¨ What types of victims are deemed so worthy that their slayers shall be executed? ¨ What types of persons will be deemed appropriate for execution? ¨ Under what conditions will the executions take place? Many variables determine the PACE. At the most basic level are variables that involve the dignity of the execution process. These include family visitation before the execution, the method of execution and other "gallows manners." For example, in some jurisdictions it is politically imperative to execute with the maximum display of anger and revenge i.e., using the electric chair or hanging. In other jurisdictions, the politically mandated facade of humane behavior calls for the use of lethal injection. Some jurisdictions use the most brutal methods of execution as a political palliative for society's desire for many executions. Such jurisdictions may not execute many people, but they do it in spectacular fashion. In other jurisdictions, the condemned are "put to sleep" by lethal injection. This method provides a "humane" facade for executions and may mask an unusually large number of executions. The political environment in a particular state is instrumental in determining the total number of executions, the spacing of the executions and their timing. Upcoming elections, the citizens' discontent with the government's efforts to control crime, and a host of other variables unrelated to the functioning of a rational criminal justice system come into play. In comprehending the idea, it is important to further understand the universe of applicants eligible for the PACE. The relevant factors include: ¨ The types of crimes for which persons are sentenced to death and the types of crimes for which persons are executed (two very distinct categories); ¨ The ratio between the number of people being sentenced to death and the number of people who are actually executed; ¨ The procedural safeguards provided by the statutes of various jurisdictions; ¨ The safeguards that are actually. judicially implemented in the various jurisdictions; ¨ The number of death-eligible persons under the laws of the various jurisdictions; ¨ The demographic identities of the persons charged in capital cases and those convicted and executed; ¨ The victim/defendant identities in cases where defendants are capitally charged, convicted and executed; ¨ The limiting mechanisms in the system which are used to achieve -- without exceeding -- the PACE (such as the requirement of a governor's death warrant or an attorney general's letter before an execution date is set). The number of variables goes on, ad infinitum. All are related to political considerations. The PACE, which determines more than anything the number of actual
executions in a particular state, is not always controlled by statewide
factors. A county may use its PACE goals to diminish the number of death
eligible persons in the state's universe, however the PACE goals of one
particular county cannot change the PACE for the state. In a like manner, the
entire country's view of the PACE may have some diminishing impact on the
actual number of executions in a particular state, however this national view
cannot increase the number of executions in a state. A particular state's PACE
is controlled by state political considerations. WHO DECIDES
WHO SHALL LIVE AND WHO SHALL DIE? There are many decision makers who determine the PACE. Some are obvious, others not. But all of these players in the political process help to determine who will be sent to their death. Law enforcement personnel. from the arresting officer to the highest ranking official, both influence and reflect the attitude of a segment of the community in making decisions about the PACE. Witnesses, together with the reliability and certainty of the government's evidence. have a significant impact in death sentencing determinations. There is great hesitation in both seeking the death sentence and determining that a death sentence is appropriate if guilt is not certain beyond any doubt. The victim's family has enormous initial impact in determining if the accused should become eligible for the PACE universe. The victim's status in society, the strength of the family's desire for retribution, the victim's demographic profile, and many other victim and family related variables help to qualify an accused for death sentencing. Prosecutors play a self-evident role in who comprises the PACE universe. Similarly, judges on both the trial level and in post-conviction proceedings, have great impact in defining the PACE universe. The jury plays an obvious role in determining the sentence, however,
the jury role in establishing the PACE universe has changed little between the pre-Furman era and the post-Furman era. The bifurcated nature
of the post-Furman proceedings and
its emphasis on producing mitigating circumstances has been little more than a
cosmetic change for death penalty litigation. The changes in the statutes and
procedures have done nothing to fairly identify the "pure mean" and
vicious people who "deserve" to be executed. The changes of statutes
and procedures have not injected any rationality into the death penalty
process. THREE ENTITIES THAT MONITOR THE PACE The PACE is monitored by three entities that check the public's pulse. It is elementary that the legislative body, in making decisions about whether to have a death penalty and the classification of crimes that qualify for it, is certainly a key player in identifying the public's attitude about the PACE. Below are two examples. ¨ Under an early post-Furman death penalty statute in South Carolina, prospective jurors were not eliminated from the jury simply because they were opposed to the death penalty. This, of course, greatly restricted the number of death sentences. The legislature changed this and allowed Witherspoon [Witherspoon v. Illinois 391 U.S. 510 (1968)] jurors to be excluded from the jury. ¨ Recently, Colorado converted from a jury capital sentencing determination to capital sentencing by a three-judge panel. The public's political scrutiny of the judges will no doubt result in more death sentences. Colorado rejected a proposal which would have allowed the decisions of the individual judges to remain anonymous. In these examples, the political processes in the legislatures of South Carolina and Colorado expressed the desire of society in those areas to increase the PACE. The
federal judiciary, particularly in the Fifth and Eleventh Circuits, played an
important role in the years immediately following Gregg [Gregg v. Georgia, 428 U.S. 153 (1976)]. For a number of years, a majority of the cases before each of these courts were sent back for new trials. These courts substantially reduced the number of executions. Then the erosion of this resistance to society's perception of the PACE became obvious as these courts began creating and exercising procedural doctrines that shielded them from deciding the merits of the constitutional issues in most of the cases. We now have enough experience to know there is little difference in the pre-Furman universe of persons eligible for the PACE than in the post-Furman universe. The so-called protections of the post-Furman statutes have been obliterated by strict waiver and procedural default rules in post-conviction review. For example, during the trial, or pre-trial in some instances, if the lawyer doesn't articulate an issue to the trial court in as explicit a manner as an appellate lawyer articulates it to a post-conviction court, that issue may be deemed waived by the client. We are learning that review of a state conviction in a federal habeas corpus proceeding is about as restricted as a demonstration in Tiannamen Square. The zeal and attitude of the legal profession about the death penalty has a real effect on the PACE. It is the legal community at the trial level which frames the issues that can be understood by society. Without a proper framing of the issues surrounding the death penalty charade, most members of society will maintain the pedestrian view that the proceedings are held to determine innocence or guilt and then a determination is made for the "appropriate" disposition of the case. The convicted person's fate is determined by some formula that is almost mathematical in nature. A failing of the legal community is that few lawyers possess the
skill, tenacity, and commitment to justice to effectively and graphically
expose the events which deprive their clients of the Constitution's
protections. WHAT TO DO TO CHANGE THE
PACE What can be adjusted to change the PACE? There are things that can change the PACE in an individual case, and there are things that can make systemic changes. Oftentimes, the things that make individual changes ultimately help to make systemic changes. First, let's look at things that can change the PACE in individual cases. Now, as pre-Furman nothing has been more effective in creating fairness in the death penalty process than strong, well-financed counsel at the earliest stage in the legal process. However, the later in the process that effective counsel becomes involved, the less influence that counsel can have on the sentence. Even the most highly qualified counsel will have little effect on the PACE if they do not become involved at the earliest stages. The PACE not only affects the ability of counsel to function as they normally would function in other representations in the criminal justice system, it additionally diminishes counsel's incentive to withstand the resistance of the previously mentioned political entities who have a large stake in obtaining the death sentence for the PACE candidate. Only by understanding the PACE, and, more importantly, understanding the motivations of the political actors who control the PACE, can we hope to stop the death penalty process in an individual case, or in society as a whole. The question then becomes, “How do we adjust the political appetite and expel the myth that executions are a ‘clean’ way to solve the problems of violence in our society?” In individual cases, raising issues of unfairness of the participants in the criminal justice process -- not just unfairness in the case-in-chief but in all aspects of these participants' lives -- is certainly one way to remove that individual client from the PACE. The exposed unfairness often not only produces results in an individual case. but has a lasting effect, providing systemic benefits within the political subdivision. Counsel who think that they are "trying" an individual death penalty case and do not understand the necessity of confronting and exposing the wrongdoings of the PACE decision makers, are just spinning a roulette wheel for their client's life. WARNING, WARNING: it can be dangerous to your client's life for you to
fulfill your duty to this individual client believing that there is some
systemic appellate net of protection under your performance. Don't rely on
systemic issues to rescue your performance in an individual case. This hasn't worked since Furman. Generally, systemic changes come at a very slow rate. Emotional events bring about these changes most often. Notable events that will be meaningful in reducing the PACE are the public statements such as those by former Justices Powell and Blackmun to the effect that the death penalty is wrong. These statements may not mean much to a large number of lay citizens. The statements are, however, important to the judges and lawyers aware of the many people executed because they did not have the votes of these jurists when they sat on the Supreme Court. The book, Dead Man Walking, by Sister Helen
Prejean, has done as much as anything to open a dialog with the general public
about the fairness of the death penalty process. This book is written in an
interesting style that attracts the attention of a diverse segment of the
population. Judges, lawyers, prosecutors, families of victims, and prison
officials find some solace in reading the book and listening to Sister Helen
relate her experiences during lectures initiated by the notoriety that the book
has given her work. Most unfortunately, the movie, Dead Man Walking, is a betrayal of truth, a betrayal of the
inmates who were spiritually advised by Sister Helen and a betrayal of the
people who worked with Sister Helen in assisting the inmates. DOING ONE'S
DUTY The unstated theme of the book and the one missed by the movie is: all participants in the death penalty process feel that they are doing their duty. The word is duty, "I'm only doing my job," as duty is sometimes paraphrased. "I'm doing my duty" is what is meant. ¨ The arresting officer in obtaining the confession that is later used to seal the decision that the accused person will be tried and given a death sentence rather than offered a life sentence, was only doing his duty when he added the words to the confession, "I'm glad I killed the old man." ¨ The prosecutor who decided to seek the death penalty was only doing his or her duty. ¨ The juror who voted for the death sentence was only doing his or her duty. ¨ The judge who was in charge of the trial was only doing his or her duty. ¨ The post-conviction judges were only doing their duty. ¨ The warden at the prison was only doing his duty. ¨ The pardon board was only doing its duty. ¨ The guards at the prison who strapped the person to the execution instrument were only doing their duty. ¨ Yes, the executioners too, were only doing their duty. And so the story goes. All of the performers were only doing their duties. We must understand this "duty" aspect of the death penalty in trying to change conduct. What is any person's duty? Who assigns that "duty?" What obligation does a person have to challenge their "duty?" What is our "duty?" What can we do to determine if the constraints placed upon our "duty" were defined fairly? How should we challenge these constraints? How do we reject and cast off these constraints? How do we redefine "duty" to reject the lockstep obedience to politician-created legal mandates and to embrace the need to confront and challenge the politician-created system? Our duty as lawyers, our duties as people closely associated with the criminal justice system are clearly defined. As criminal defense lawyers, our duty is to make meaningful to the whole of society the protections of the Constitution. Our duty as criminal defense lawyers is to protect the people from the powers of government. This protection provided to one member of our society guarantees that such protection extends to all members of our society. The duty role assigned us needs to be revisited. Our duty does not restrict us within the four walls of the courthouse. It does not restrict us to within the four corners of a document written by a black robed politician. It does not restrict us to the workings of the political process. If we perform our duty, the other actors in the death penalty process will perceive their duties differently. Our duty is to reduce the PACE
to ZERO.
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