Intractable Obstacles

Last year ended with the news of a record low number of death sentences, and with the decision by the American Law Institute, described today in the New York Times, to give up trying to fix our broken capital punishment system.  The Institute, a collection of thousands of judges, lawyers and law professors, is very influential, in that it creates model penal codes which often serve as the basis for the real-life laws under which we live.  

The Institute created the “modern” death penalty system that the US Supreme Court endorsed in 1976.  But a report detailing factors we are already all too familiar with – persistent racial bias, inadequate defense, wrongful convictions, and a politicized judiciary – caused the Institute to vote to abandon capital punishment, citing “… intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”  

This doesn’t mean that the death penalty in the US will suddenly cease to exist; the deliberate and thoughtful analysis of the American Law Institute will not have an immediate impact in states where killing prisoners is routine and done without much thought at all.

Executions will continue.  Three in fact, will occur on Thursday.  While the usual suspects, Texas and Ohio, plan to execute Kenneth Mosley and Vernon Smith (aka Abdullah Sharif Kaazim Mahdi), Louisiana also has an execution scheduled on that day – its first in almost 8 years.  Gerald Bordelon has “volunteered” to be executed.  The next day, January 8, South Carolina will execute Quincy Allen.  He, too, is “volunteering,” and has asked to be put to death by electrocution.  The state will oblige him.

UPDATE: The state of South Carolina will NOT oblige Quincy Allen’s volunteering to be electrocuted.  The South Carolina Supreme Court has stayed his execution.

With Death Sentences Down, Things Are Looking Up in Texas

Source: Texas Coalition to Abolish the Death Penalty

Source: Texas Coalition to Abolish the Death Penalty

It’s always nice to hear good news about the decline of the death penalty, and even nicer when that news is coming out of Texas. According to a recent report, while Texas officials continue to carry out executions at a high rate, the number of Texas juries that opt for the death penalty has dropped remarkably in recent years. In 1999, Texas sentenced 48 prisoners to death, but over the last decade that number has plummeted; so far in 2009, only 9 death sentences have been meted out. The drop has come about partly because a life-without-parole option has reassured juries that convicts will never be released, partly because in a troubled economy the sky-high financial costs of the death penalty are particularly daunting, and mostly because of what Texas state Senator Eddie Lucio Jr.,  calls “a growing lack of belief that our system is fair.”

Well-publicized exonerations, some based on irrefutable DNA evidence, have woken many Texans up to the reality that the legal system is often quite flawed, and more and more jurors are unwilling to risk being complicit in the execution of an innocent person. Tarrant County’s lead criminal prosecutor, Alan Levy, has said that said groups like the Innocence Project have done an excellent job of raising the profile of innocent convicts, and have made sure that the topic of wrongful conviction (and potential wrongful execution) is not forgotten.


Ohio Needs a Moratorium on Executions Now

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.

Executed for a crime that never occurred?

In 2004, Cameron Todd Willingham was executed in Texas for setting a fire that killed his three children.  He maintained his innocence to the end, and those who looked into his case, including the Chicago Tribune, have concluded that he was in fact wrongfully executed.  His was one of the 200+ executions under Rick Perry, a governor who has remained willfully oblivious to the huge flaws in his state’s death penalty.  

Yet recently, to its credit, the Texas Forensic Science Commission reopened the case.  A nationally known fire expert, Craig Beyler, was hired to assess how Texas authorities investigated the fire.  According to the Tribune, Beyler’s report is not kind to the Texas investigators, and he determined that there was no scientific reason to believe that the fire was arson at all.  If indeed that is the case, Cameron Willingham was executed for a crime that never occurred – an exceptional cruelty for a man who had already lost his three children.

Beyler ripped the fire marshal who investigated the case, saying, according to the Tribune, that the fire marshal had “limited understanding” of fire science, “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” and that his findings “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

The Texas Forensic Science Commission will solicit a response from the fire marshal and then publish its final report.  If it reaches the same conclusion that this nationally respected fire expert has, the state of Texas may finally officially acknowledge that it has executed an innocent man.

Sensationalist Film Exploits Important Human Rights Issue in Iran

Ordinarily, human rights activists would be pleased when the rare major motion picture shining a light on human rights violations comes along. In fact, aside from documentaries, it is very unusual to see issues that Amnesty International has worked on appear on film. However, sometimes a film can so distort an important human rights issue, that it may do more harm than good to the cause.

Sadly, this is the case with the new movie opening this Friday, “The Stoning of Soraya M,” the purportedly true story of the brutal execution by stoning of an innocent Iranian village woman. For one thing, the film is marked by crude story-telling: the main character Soraya is merely a mutely suffering victim while her brutish husband, who falsely accuses her of adultery so that he can marry a teen-aged girl, is a cardboard caricature of evil and malice. More importantly, aside from the numerous inaccuracies and implausibilities, the climax of the film—a bloody and prolonged stoning scene with villagers mercilessly pelting the victim—is so sensationalized that the audience response is likely to be disgust and revulsion at Iranians themselves, who are portrayed as primitive and blood-thirsty savages.

The film is presented as an indictment of Iranian society as a whole, and the setting—a remote rural village of about 25 years ago—is presented as typical of contemporary Iran. In the film, the victim’s aunt (who though she is supposed to be an ignorant village woman, inexplicably speaks excellent English and smokes cigarettes with 1940s femme fatale flourishes) is eager to have the French-Iranian journalist, who stops in the village shortly after the incident, smuggle a tape of her relating the story out of the village. She states that she wants the whole world to know what happened there, presumably so that those on the outside (the west?) can rescue the benighted Iranian people from their barbaric practices.

In fact, Iranians themselves—and in particular Iranian women’s rights activists– have organized and carried out a vigorous campaign against the practice of stoning and have themselves been actively documenting the practice. Opposition to the practice occurs at the highest level of the Iranian legal system; the Head of the Iranian Judiciary announced a moratorium on stoning back in 2002 and it was reiterated in August 2008. Sadly, at least three people have been executed by stoning since then. Interestingly, all three were men.

By criticizing the film, I am not dismissing the importance of the issue. Amnesty International issued a major report on stoning in January 2008, in which it is described how this form of execution is prescribed for adultery—although in practice, it is usually adultery in conjunction with some other crime, such as being an accessory to the murder of a husband. Furthermore stonings are carried out in prison yards by government agents, not by members of the community.

Crucially, we must look at stoning in the overall context of executions in Iran. Stonings represent a tiny fraction of executions in that country. Iran executes more people than any other country in the world except for China. In 2008 it executed at least 346, the overwhelming majority of whom were executed by hanging, sometimes for politically motivated offenses, and often after flawed legal proceedings. But again, Iranians don’t need people from outside Iran telling them what is good for them because Iranians themselves have taken the lead in opposing executions in their country. The renowned Iranian human rights activist Emadeddin Baghi was recently awarded the prestigious Martin Ennals award, partially for his anti-death penalty activism.

I would urge those who really want to see important social issues in Iran critically examined should check out some of the great films made in Iran such as “A Time for Drunken Horses” which deals with poverty among Iran’s Kurdish minority, “The Day I Became a Woman” and “As Simple As That” about the frustrations experienced by women in Iran, and “Santoori” which deals with drug addiction.

An accurate and thoughtful film about executions in Iran would be welcome, but we will still have to wait as the “Stoning of Soraya M” is not it.

200th Execution under one Governor

With the execution of Terry Lee Hankins last night, Texas Governor Rick Perry has reached a pretty apalling benchmark: 200 executions in his eight and a half years as governor.  As in other states, the death penalty in Texas has proven to be ineffective as a deterrent, racist in its application, and extremely costly. Not to mention that Texas does not have a strong reputation for considering all of the evidence before going forth with an executuion: there have been at least eight executions in the last twenty years where there was strong evidence of the defendant’s innocence – five of them were from Texas. This overzealous approach to justice means that Texas sometimes fails to punish the true perpetrators of some pretty horrific crimes.  Texas has been responsible for 439 executions since the death penalty was re-applied in 1976. That’s 38% of all executions in the United States since that time.

Terry Hankins was executed by lethal injection around 6:19pm for shooting his two step children and his wife. He had also confessed to killing his father and half-sister around 2000, though he was only tried for the first three deaths.

The state of Texas is likely to continue its reckless spree of executions. Hankins was the 16th execution this year, and the state still has four more executions scheduled over the next four months, the next of which is Kenneth Mosley on July 16.

Bad News, Good News

The bad news is that the United States is still among the top executioners in the world.  The good news is that the numbers are down.  According to an Amnesty International report released today, the U.S. remains in league with China, Iran, Saudi Arabia, Pakistan and Iraq as the countries responsible for the most executions in 2008.  But the 37 executions that took place in the U.S. in 2008 was the lowest total since 1994

This is partly due to the moratorium imposed on executions while the Supreme Court considered the constitutionality of lethal injection, but it is also due to the steady erosion of support for capital punishment in our courtrooms, our jury rooms, our state legislatures and among the general public.  Death sentences have been declining steadily for several years.  Public support is down 15 to 20 points.  When alternatives are offered, polls show that the public is often evenly divided between supporting the death penalty or preferring sentences like life without parole.  And more and more states are engaging in serious death penalty abolition debates, including in New Mexico, where Governor Bill Richardson signed death penalty repeal into law last week.

This decline of capital punishment is mirrored internationally, where, as of the end of 2008, more than two-thirds of the world’s nations had either ceased practicing capital punishment, or had abolished it altogether.  A UN General Assembly resolution calling for an immediate worldwide moratorium on executions passed in December with 106 yes votes, and only 46 no votes, with 34 abstentions.

In both the U.S. and the world, capital punishment is increasingly a regional phenomenon.  In the U.S. the vast majority of executions take place in the South, with most of those occurring in Texas.  Globally, the vast majority of executions take place in Asia and the Middle East, with most of those occurring in China.

Since 1977, when Amnesty International first adopted the death penalty as a fundamental human rights issue, we have seen a slow but steady decline in its use worldwide; since the turn of the new century we have begun to see a similar decline here in the U.S.  While Amnesty International’s report clearly reveals deeply troubling capital punishment practices in some countries (beheadings in Saudi Arabia, hanging of juvenile offenders in Iran, large numbers of executions after unfair trials in China), the long-term trends are equally apparent, and in favor of abolition.

Iraq: 128 Executions Planned

On Monday, March 9, the Iraqi government announced to Amnesty International that 128 death sentences have been ratified, and that executions would commence soon at the rate of 20 per week.  Exactly who these 128 people are, what crimes they have been condemned for, or how imminent these executions are is not known.  It is also now known how many of these prisoners facing execution might have been transferred to Iraqi authorities from US custody following the Status of Forces Agreement that came into effect at the beginning of this year.

What is known is that Iraqi trials do not always conform to international fair trial standards.

Ironically, a moratorium on executions was in place in Iraq while it was under US occupation, but that came to an end in August of 2004.  It is not known how many executions have taken place since then (at least 65 in 2006, at least 33 in 2007 and at least 34 in 2008).  By any measure, 128 executions, or 20 executions a week, would be a disturbing demonstration of enthusiasm for state killing in a country trying to recover from years of violent upheaval.

Please urge Iraqi authorities to commute these death sentences and reinstate the moratorium on executions.

Capital Punishment Slowing Down

The Death Penalty Information Center has released its Year End Report (pdf) for 2008.  It reveals clearly that the trend towards growing skepticism and diminishing (and more regional) use of capital punishment is continuing.  There were 37 executions in 2008, the lowest total since 1994, and there were only 111 death sentences passed.  For the second straight year, this was the lowest number of death sentences since capital punishment was reinstated since 1976.  (In the peak year, 1999, there were 98 executions and 284 death sentences.)

Four men were exonerated for America’s death rows this year, increasing already substantial public doubts that an imperfect system can, or should, carry out such an irreversible punishment. 

Executions this year were also almost exclusively a Southern phenomenon.  Depending on your definition of The South – are Kentucky and/or Oklahoma “southern” states? – this region accounted for all but 2, or 4, or 5 executions in 2008.  But the dramatic decline in death sentences is taking place in the South just as it is everywhere else  in the U.S. (except at the Federal level, where death sentences have doubled since outgoing President Bush took office). 

As the report of the Texas Coalition to Abolish the Death Penalty (pdf) revealed last week, death sentences in that notoriously execution-friendly state also dropped to a post-reinstatement low, with only 9 sentences recorded in 2008.  Of course, Texas continues to execute at an alarming rate (accounting for almost half the executions this year), but to a certain extent execution numbers are a reflection of where the death penalty stood 10 or 12 years ago (the average length of time it takes for a death sentence to be carried out).  In another decade, we may see execution numbers in Texas and the rest of the South dropping to the levels they are currently at everywhere else, which is almost zero.

No Rational Explanation

Washington State flag

Washington State flag

The death penalty isn’t as popular out West as it is down South. For example, there hasn’t been an execution in Washington since 2001, and there have been only four total in the 30+ years since the death penalty was reinstated in 1976.

Not that there are never any serious crimes in The Evergreen State.  Gary Ridgway was convicted of 48 murders … but he avoided the death penalty.  This has led many to recognize that capital punishment in Washington is extremely arbitrary, which in turn led to an important Washington Supreme Court decision in 2006.  Four Washington Supreme Court judges said that “No rational explanation exists to explain why some individuals escape the penalty of death and others do not.”  The other five Supreme Court judges said that the question of “whether the death penalty can, in fairness, be proportional” was an important one that the state’s Legislature was in the best place to answer.  So far this important question has yet to be adequately addressed.

Which brings us to Darold Stenson, who is scheduled to be executed on December 3 (really one minute after midnight on December 2).  The crime he was convicted of, two murders, was certainly terrible (although he is refusing to petition for clemency and continues to try to get more DNA testing to challenge his conviction).  But as long as the capital punishment remains as arbitrary as it is in Washington, Governor Gregoire should not allow executions in her state to proceed.