In a recent interview on NPR, former Texas Governor Mark White discussed his lack of faith in the ability of the legal system to reliably handle death penalty cases, and emphasized the seriousness of handing down an irreversible sentence to a person who may later be proven innocent. While he was Governor, he oversaw a significant number of executions, but White now believes that: ”What I see in retrospect is that our system is not as foolproof as I think it should be in order to carry out a punishment that’s irreversible.”

White also stated that he has never believed in the death penalty as a deterrent, because: “Obviously, with 400 people on death row, there’s at least 400 people up there that didn’t deter.”

As Amnesty International observed, Governor White’s evolution on this question is part of a national trend: “As advances in DNA and forensic science have revealed the extent to which our criminal justice system is prone to error, judges, jurors, the public, and even some politicians, have begun to question the wisdom of resorting to capital punishment.”

White’s statements (he’s a Democrat) also come at a particularly bad time for current Governor Rick Perry, who, in the middle of a re-election campaign, is now being scrutinized for his role in the execution of Cameron Todd Willingham, who appears to have been innocent and wrongly put to death.

In the past, you would only pay a political price if you didn’t support the death penalty strongly enough.  But in Texas, as everywhere else in the U.S., times have changed, and it would be quite something if the most prolific executing Governor in modern history wound up suffering politically because he supported the death penalty too much.

Health professionals confirm death in 1998 Guatemala execution. (c) Jorge Uzon

Ohio’s botched and failed execution of Romell Broom, which has led to the postponement of all the Buckeye State’s execution plans – at least for this year – has created another problem for the state.  It seems that when you are doing something morally repugnant, like putting a human being to death with lethal chemicals, those with ethics don’t want to help you.  So, as Ohio looks for ways to improve its ability to kill prisoners without embarrassing mishaps, it is not surprising that they are having a hard time finding a respectable member of the medical profession who is willing to help them.  Killing someone, it seems, is somewhat of a violation of the whole “do no harm” code of ethics to which health professionals are bound.

According to an AP report, on Friday, Ohio’s Attorney General Richard Cordray filed a brief with a federal District Court explaining that “ethical and professional considerations are deterring doctors and others from offering advice about lethal injection.”

Apparently, due to this difficulty, Ohio now has judges, police and lawmakers helping to find some medical professionals who are willing to take their ethical obligations less seriously and give the state the help it needs to resume killing.

Meanwhile, there is nothing to prevent us from continuing to offer our own – albeit unsolicited – advice, that the best way for Ohio to avoid these moral quandaries it to simply stop executions.

The Death Penalty Information Center released a new study today on the high costs, and lack of real benefits, associated with capital punishment in the United States.  The report, called Smart on Crime:  Reconsidering the Death Penalty in a Time of Economic Crisis, also includes the results of a poll of 500 randomly selected U.S. police chiefs who by a more than 2 to 1 margin reject the idea that the death penalty is a deterrent (an assessment confirmed by criminologists),  and, also by a greater than 2 to 1 margin, believe that the death penalty is used as a tough-on-crime symbol by politicians. 

“Greater use of the death penalty” was listed as the best way to reduce violent crime by only 1% (that’s one percent) of the chiefs surveyed, and only 2% (3% in the South) believed that “insufficient use of the death penalty” interferes with effective law enforcement.

And use of the death penalty is declining anyway.  For almost a decade the numbers of death sentences and executions have continued to drop.  As Richard Dieter, executive director of the Death Penalty Information Center, told CNN “…the death penalty is turning into an expensive form of life without parole.” (more…)

Wednesday, Oct. 14, radio host Tom Joyner became the first person to obtain a posthumous pardon for unjust executions in South Carolina.  South Carolina is a typical gung-ho executing Southern state, so this achievement was no small feat.  Joyner obtained the pardon on behalf of two great uncles, Thomas and Meeks Griffin, who in 1915 were wrongfully put to death for the 1913 murder of a white Civil War veteran in Blackstock, SC.  Joyner only found out about this tragic episode because of his participation in African American Lives 2, a 2006 PBS show that traced the ancestries of prominent African Americans.

While Joyner was understandably shocked and motivated to action by this revelation of his family history, the story of what happened in South Carolina 94 years ago is eerily familiar to what goes on in capital punishment in America today.  Certainly, wrongful death sentences and executions (as the Cameron Todd Willingham case definitively demonstrates) are still with us.  The Griffin brothers were framed for the murder by the actual killer, as was the case in John Grisham’s non-fiction study The Innocent Man, and as seems likely to have been the case with Troy Davis. And, as is the case today, legal costs were devastating; the Griffins had to sell off their considerable land holdings (130 acres) to pay for their lawyer. (more…)

(c) Scott Langley

An important hearing was supposed to take place in Texas today, but on Wednesday, September 30, Texas Governor Rick Perry abruptly replaced three members of the Texas Forensic Science Commission that is currently reviewing the fire investigation that led to the 2004 execution of Cameron Todd Willingham.  The Governor took this action two days before the Commission was scheduled to hear live testimony from Craig Beyler, a nationally respected fire expert whose recent report criticized the original investigation of the fire that killed Willingham’s three children as having “nothing to do with science-based fire investigation.”

That hearing, scheduled for today, has now been postponed, and the chair of the Commission, a defense lawyer from Austin, Sam Bassett, has been replaced by politically-connected, tough-on-crime prosecutor John Bradley.  More than a few eyebrows have been raised by Governor Perry’s sudden move.  Barry Scheck of the Innocence Project,  which also conducted a review of Willingham’s case and determined that he was innocent of the crime for which he was executed, called Perry’s actions a “Saturday Night Massacre,” drawing an analogy with President Nixon’s famous firing of the special prosecutor who was investigating the Watergate scandal. 

For his part, Governor Perry said that his actions were simply “business as usual” … the terms of the three Commission members he removed had expired, so they were replaced.  Of course, this occurred two days before the Commission’s hearing, and there is no reason Governor Perry could not have simply reappointed those Commission members so that they could finish their important work. 

Governor Perry (and the Texas Board of Pardons and Paroles) signed off on Willingham’s execution back in 2004, despite having in hand a report challenging the fire investigations as “junk science,” and the Governor has publicly challenged Beyler’s credibility, referring to him and others who have looked at the case as “supposed experts.” What Governor Perry’s expertise is in the area of forensic fire science is unclear.

What is clear is that, whatever the Governor’s motives, if his actions lead to another white-washing of a dubious conviction and death sentence (and, in this case, execution), then that will indeed be “business as usual” in Texas.

The death penalty is always inhumane, but Ohio’s failed attempt to execute Romell Broom on September 15th was particularly disturbing.  During the two-hour ordeal the execution team repeatedly attempted and failed to find a useable vein in which to insert the lethal injection needle, and eventually had to give up.  Mr. Broom’s execution has been stayed, but Lawrence Reynolds, Darryl Durr, and Kenneth Biros are still scheduled to be put to death before the end of this year. Mr. Reynolds lawyers have filed for a stay of execution, pointing out that this latest failed execution attempt is further evidence of “a pattern of serious problems with the administration of lethal injection in Ohio.”  While the victims of these crimes and their families always suffer greatly, the perpetuation of violence through the death penalty is never the most constructive way to handle such tragedies.

Unfortunately, this situation is not unique; in Ohio alone there have been at least two other poorly handled executions over the last three years. In May of 2006, it took the Ohio execution team nearly half an hour to find a useable vein in condemned prisoner Joseph Clark’s arm, and then that vein collapsed, causing Clark’s arm to swell. The witnesses reported hearing “moaning, crying out and guttural noises” coming from behind the curtain while the execution team continued to try for 30 more minutes to find another vein. It wasn’t until an hour and a half after the execution began that Joseph Clark was pronounced dead.

In 2007 another execution team in Ohio struggled to find useable veins in condemned prisoner, this time Christopher Newton. It was again a prolonged ordeal, and Mr. Newton was not declared dead until nearly two hours after the execution process began.
 
Ohio state officials still have no contingency plan for these kinds of situations, and they are not addressed in the state’s lethal injection protocol. Because of this clear evidence that the state of Ohio has serious problems administering lethal injections, please tell Ohio Governor Ted Strickland to stop executions from being carried out in his state.

Today is Constitution Day.  On this day, September 17, in 1787, the US Constitution was signed by a group of men known collectively these days as the “Founding Fathers”.  Yesterday, the Texas Court of Criminal Appeals (TCCA) celebrated a day early by denying relief to Charles Dean Hood despite the fact that the judge and prosecutor were sleeping together during his trial. 

Charles Dean Hood received a death sentence in 1990 in Collin Country, Texas for the murders of Ronald Williamson and Tracie Lynn Wallace.  The Honorable Verla Sue Holland served as the judge during his trial while Thomas O’Connel—Collin County’s District Attorney—was the leading prosecutor on the case.  Last year O’Connel and Holland revealed that they had maintained a clandestine sexual affair for a long period of time.  Their relationship coincided with Charles Hood’s trial. 

The affair was first uncovered last June, two weeks before Hood’s scheduled execution, when a Collin County assistant district attorney revealed it in an affidavit.  The affair was subsequently confirmed by O’Connel and Holland during separate official testimonies.  In the meantime, Hood’s execution was postponed, as the state was not able to carry it out before the expiration of his death warrant.

Following the discovery of the affair, Mr. Hood’s case was brought in front of the TCCA for reconsideration.  Although eight of the nine judges on the court had previously worked with Judge Holland, they still chose to review the case.  Yesterday, in a 6-3 vote, in a dense, almost unreadably bureaucratic 3-page opinion, they dismissed the appeal on the grounds that the issue of Holland and O’Connel’s sexual relations should have been raised earlier, a curious interpretation of procedural rules given the fact that neither the judge nor the prosecutor admitted to the affair until mid-2008, when a civil court ordered them to testify under oath.  

In a more detailed 9-page dissent, the three judge minority argued that the issue of the illicit affair could not have been raised earlier because of “… the principals’ longstanding efforts to keep the affair hidden.” No kidding.

But should that even matter?  Did I mention that the judge and prosecutor were sleeping together? … how is that not enough to merit a new trial?  Whatever its tortured logic, the TCCA ruling clearly violates basic fair trial protections established by the Constitution whose 222nd anniversary we celebrate today.

In the aftermath of the verdict, the Texas Defender Service issued a statement, noting that the TCCA decision supports “the perception that justice is skewed in Texas” and that “obvious and outrageous violations of the Constitution are acceptable in death penalty cases.”  The statement also rightly points out that the Court’s ruling “rewards the judge and prosecutor for maintaining a wall of silence about their affair for nearly two decades.”  The Texas Defender Service skillfully sums up the ramifications of the decision by stating “No one would want to be prosecuted for a parking violation – let alone for capital murder — by a district attorney who is sleeping with the judge.”

In Iran, in January of this year, a man being stoned to death for adultery managed to survive his ordeal by digging his way out of the pit in which he had been buried.  According to an Amnesty International report, citing Iran’s penal code, “if the condemned person manages to escape from the pit, they will not be stoned again if they had been sentenced after confession.” The man who escaped in January was not stoned again that day, though it is believed he was taken back into custody.   

Today, Ohio faces a similar dilemma.  Romell Broom survived the Buckeye state’s attempts to execute him by lethal injection, due to the failure of his executioners to find a useful vein in which to inject the poison.    Does this mean Mr. Broom will no longer face the needle, or will Ohio subject him to a second execution?  It appears that the latter is the case (Ohio Governor Ted Strickland merely granted Mr. Broom a week-long reprieve), although there may be arguments in court that being executed twice would constitute cruel and unusual punishment. 

Ohio has had these problems before: the execution of Christopher Newton (who “volunteered” to be executed by giving up his appeals) took 90 minutes, and the lethal injection of Joseph Clark took 40.  In both cases, the delay was the result of the inability of the execution team to find suitable veins.

Given that this horrible problem keeps re-occurring, it would be wise for Ohio Governor Ted Strickland to at least declare a moratorium and halt executions in his state.

The FBI’s annual crime report – Crime in the United States, 2008  – which was released Monday reveals that, like death sentences and executions, murder rates in the U.S. declined slightly in 2008.  This has been the trend for a number of years, as has been the fact that homicide rates vary from state to state, with the states of the Deep South generally having the highest murder rates. 

As usual, states without capital punishment generally had lower homicide rates than the states that execute.  In fact, all but one of the 14 states with no death penalty in 2008 had murder rates below the national rate of 5.4 per 100,000.  The lone exception, Michigan, had a homicide rate of 5.4, equal to the national rate. 

Homicide rates in the U.S. are of course still way too high.  That 1 in every 20,000 Americans was murdered last year is nothing to be proud of, but by now it should be clear to all that, as the consensus of criminologists agree, the death penalty has nothing to do with solving this problem.

Bob Barr thinks so.  In his Washington Times op-ed, the former federal prosecutor, Georgia Congressman and Libertarian Presidential candidate, labels Scalia the “high court curmudgeon” for his dissent from the Supreme Court’s order giving Troy Davis to have an evidentiary hearing on his substantial evidence of innocence.

Scalia believes, simply, that the Constitution doesn’t protect the innocent from being executed.  Barr believes that it does.

“The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.”

Bob Barr was instrumental in the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) back in 1996, and has clearly been perturbed by the way that law has been interpreted to prevent what justice plainly requires in this case:

“… a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify.” And at which “… the state of Georgia will have full opportunity to rebut that testimony.”

The “pinched and erroneous” interpretations of AEDPA by cantankerous old judges like Scalia ignore the fundamental basis for law and justice, which is to punish the guilty and protect the innocent.