18. In Louisiana and Mississippi, attorneys who represent indigent defendants in capital trials are given a maximum fee of $1,000 to investigate, prepare and try cases. In Georgia the fee is even less — $50 to $150 for counsel at trial (which is waivable) and no more than $500 for preparation and investigation for trial and appeal expenses. See Coyle, Strasser, and Lavelle, “Fatal Defense,” pp. 32–33.
According to Steve Bright, Alabama now pays defense counsel $20 per hour, up to a limit of $2,000 a case for out of court preparation. See Steve Bright, “In Defense of Life: Enforcing the Bill of Rights on Behalf of Poor, Minority, and Disadvantaged Persons Facing the Death Penalty,” Missouri Law Review 57 (Summer, 1992): pp. 849870, especially note 55, (1992).
19. Judge Lois Forer of the Court of Common Pleas in Philadelphia in her book, Money and Justice bluntly sums up the disparities in our court system toward rich and poor: “… the legal system is divided into two separate and unequal systems of justice: one for the rich, in which the courts take limitless time to examine, ponder, consider, and deliberate over hundreds of thousands of bits of evidence and days of testimony, and hear elaborate endless appeals and write countless learned opinions; the other for the poor, in which hasty guilty pleas and brief hearings are the rule and appeals are the exception.” See Money and Justice: Who Owns the Courts? (New York: Norton, 1984), p. 9.
20. For the past three years, 1990–1992, the number of people sentenced to death has been 260 a year. (See Capital Punishment 1991, Bureau of Justice Statistics, October, 1992) In 1991 the number of murders was about 25,000. (See Washington Post, August 30, 1992, at A13) Thus, only about 1 percent of murderers get the death penalty. In 1992 there have been 29 executions. Assuming there will be 25,000 murders this year, that amounts to one execution for every 860 murders.
In an article, “The Death Penalty and the Risk of Execution Today,” Hugo Adam Bedau demonstrates why the risk of execution for murder in the United States is so low: police make arrests in about two out of three murders, and of those arrested, prosecutors are able to get a conviction in about two thirds of these cases; it is difficult for courts to get a conviction of an accused felon without a confession, which felons are reluctant to give without an inducement — namely, a plea bargain or reduced charges; capital trial juries tend to grant more life sentences than death sentences even in Southern states where the death penalty is most vigorously sought; and appellate courts, state and federal, nullify many death sentences because trial courts violate due process. See Lifelines, January-March 1991, p. 2, published by The National Coalition to Abolish the Death Penalty, 1325 G St. N.W., LL-B, Washington, D.C. 20005, (202) 347–2411.
21. Penry v. Lynaugh 109 S. Ct. 2934 (1989).
In Georgia, on June 24, 1986, Jerome Bowden, a thirty-three-year-old black man with an IQ of 65, was executed for the murder of Kathryn Stryker. The only incriminating evidence against Bowden was his “confession,” which was typed by the police because Bowden could neither read nor write. In his last statement he thanked the prison for taking care of him. See “Jerome Bowden’s 11th Hour” in Robert Perske’s Unequal Justice? (Nashville: Abingdon Press, 1991).
See also John Blume and David Bruck, “Sentencing the Mentally Retarded to Death: An Eighth Amendment Analysis,” Arkansas Law Review 41 (1988): pp. 725–764.
22. Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687 (1988). See Victor Streib, Death Penalty for Juveniles (Bloomington: Indiana University Press, 1987).
In its October 1992 report United States of America: The Death Penalty and Juvenile Offenders, Amnesty International described its findings in the cases of twenty-three juvenile offenders sentenced to death and suggested that safeguards in capital punishment law had not been met in many cases. The report noted that the majority of juvenile offenders on death row came from acutely deprived backgrounds and that many were of below-average intelligence, had been seriously abused as children, and suffered from mental illness or brain damage. AI called on the twenty-four states which permit the execution of 15- to 17-year-old offenders to bring their legislation into line with international standards which stipulate that no one may be executed for crimes committed below the age of eighteen. The report is available from Amnesty International Publications, 1 Easton Street, London WC1X 8DJ, United Kingdom; 322 Eighth Avenue, New York, New York 10001, (212) 807–8400.
23. Ford v. Wainwright (407 U.S. 399 (1986). See Kent S. Miller and Michael L. Radelet, Executing the Mentally III: The Criminal Justice System and the Case of Alvin Ford (Newbury Park, California: Sage Publications, 1993).
24. Stephen J. Adler, “The Cure That Kills.” American Lawyer, September, 1986. See Michael L. Radelet and George W. Barnard, “Treating Those Found Incompetent for Execution: Ethical Chaos with Only One Solution,” Bulletin of the American Academy of Psychiatry and the Law 16 (1988): pp. 297–307.
25. The Louisiana Supreme Court ruled that Perry could not be forcibly medicated. “An incompetent prisoner cannot be forced to take drugs that might make him sane enough to be executed.” State v. Perry, 608 So.2d 594 (La. 1992) No. 91-K P- 1324 (La., October 19, 1992).
See G. Linn Evans, “Perry v. Louisiana: Can a State Treat an Incompetent Prisoner to Ready Him for Execution?” Bulletin of the American Academy of Psychiatry and the Law 19 (1991): pp. 249–270.
26. See Jason DeParle in, “A Matter of Life or Death,” Times Picayune, April 7, 1985. This survey of 504 Louisiana murder cases eligible to receive the death penalty concluded that “race, locale, and luck” play a large role in determining which criminals are spared and which are condemned to die.
See also M. Dwayne Smith, “Patterns of Discrimination in Assessments of the Death Penalty: An Assessment of Louisiana,” Journal of Criminal Justice 15 (1987): pp. 279–286.
See also Ronald J. Tabak, “The Death of Fairness: The Arbitrary and Capricious Imposition of the Death Penalty in the 1980’s,” New York University Review of Law and Social Change 14, no. 4 (1986): pp. 798–848.
27. Louisiana Revised Statutes 14:30(1).
28. Trial Transcripts, State of Louisiana v. Elmo P. Sonnier, pp. 1077–1078 and 1145–1147.
29. Clark v. Louisiana State Penitentiary, 694 F. 2d 159 (Fifth Circuit, 1982). Colin Clark, convicted of first-degree murder in East Baton Rouge Parish and sentenced to die in August 1979, received a new trial because the Fifth Circuit Court of Appeals ruled that the improper jury instruction violated his Fourteenth Amendment rights. The new trial won him a sentence of life imprisonment, which he is serving today in the Louisiana State Penitentiary.
30. One week before trial, Sonnier’s defense attorney filed a flurry of pretrial motions. All were denied by the court, some because they were filed after March 6, the deadline for pretrial motions. Trial Transcripts, Louisiana v. Elmo P. Sonnier, pp. 36–94.
31. The U.S. Catholic Bishops first issued a statement opposing capital punishment in 1974, then in 1980 issued a more expanded and comprehensive statement, arguing, in part, the “discriminatory nature” of the death penalty in a society where “those condemned to die are nearly always poor and disproportionately black …” The bishops’ “Statement on Capital Punishment” (1980) may be obtained from the U.S. Catholic Conference, 3211 Fourth St. NE, Washington, D.C. 20017, (202) 541–3000.
32. Raul X. Rosales, S.J., “Jesuits Fight for Life,” The Maroon, October 31, 1986 (Loyola University, New Orleans, Louisiana 70118); “Connick Replies” (letter to editor), The Maroon, December 5, 1986.
33. Kevin Pedro Kelly, “Priests Take Both Sides in Death Penalty Debate,” The National Catholic Reporter, July 3, 1981.
34. John Maginnis, The Last Hayride (Baton Rouge: Gris Gris Press, 1984), p. 207.
35. Toney Anaya, former governor of New Mexico, answering what he called “the moral dictates of conscience,” commuted to life all death sentences before he left office. See Richard E. Meyer, “New Mexico Death Sentences Commuted,” The Los Angeles Times, November 27, 1986.
Before
leaving office, Governor Richard Celeste commuted the death sentences of eight prisoners in Ohio, including those of four women. He said that strong racial bias had put a disproportionate number of black people on Ohio’s death row, and he was also concerned about mental illness and mental retardation among death-row inmates. However, the state appealed seven of these commutations after Celeste left office, so the fate of these prisoners is as yet unresolved. See “At End of Term, Ohio Governor Commutes Death Sentences of 8,” New York Times, January 12, 1991.
CHAPTER FOUR
1. “During his life on earth, he offered up prayer and entreaty, aloud and in silent tears, to the one who had the power to save him out of death, and he submitted so humbly that his prayer was heard. Although he was Son, he learnt to obey through suffering …” Letter to the Hebrews 5:7, 8. All quotations from Scripture are from The Jerusalem Bible (Garden City, New York: Doubleday & Co., Inc., 1966). Subsequent citations are by book, chapter, and verse in the text.
CHAPTER FIVE
1. George Bernard Shaw, Saint Joan (New York: Penguin, 1966), pp. 153–154.
2. C. Paul Phelps died suddenly on March 9, 1993. He was sixty years old. After retirement from the Department of Corrections he ran (with considerable success) a private probation agency and worked with first-time offenders to prevent their going to prison. Counseling, supervision, education, and job training were centerpieces of the program.
3. In December 1948, the United Nations General Assembly adopted without dissent the Universal Declaration of Human Rights. Article 3 of the Universal Declaration states, “Everyone has the right to life.” Article 5 states, “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” The United States signed the declaration but Congress did not ratify it. Copies of the U.N. Declaration of Human Rights are available from Amnesty International. (See note 22 of chapter 3 for address.)
4. For information about the victims’ advocacy group contact the Office of Justice and Peace of the Catholic Diocese of Lafayette, 1408 Carmel Avenue, Lafayette, Louisiana 70802, (318) 261–5545.
5. In New York, over the period 1907–1963, there were on average two more homicides in the month following an execution. See William J. Bowers and Glenn L. Pierce, “Deterrence or Brutalization: What Is the Effect of Executions?” Crime and Delinquency 26 (1980): pp. 453–484.
Also see William C. Bailey, “Murder and Capital Punishment in the Nation’s Capital,” Justice Quarterly 1 (1984): pp. 211–233; and William J. Bowers, “The Effect of the Death Penalty Is Brutalization, not Deterrence,” in Kenneth C. Haas and James A. Inciardi’s Challenging Capital Punishment: Legal and Social Science Approaches (Newbury Park, California: Sage, 1988).
6. For a thorough treatment of the death penalty as deterrent, see Hugo Adam Bedau, The Death Penalty in America, 3d ed. (New York: Oxford University Press, 1982), pp. 93–185.
Also see Raymond Paternoster, Capital Punishment in America (Lexington, Massachusetts: Lexington Books, 1991), pp. 217–245; and Roger Hood’s monograph published for the United Nations, The Death Penalty: A Worldwide Perspective (Oxford, England: Oxford University Press, 1989), pp. 117–148.
For an annotated bibliography on deterrence and other facets of the death penalty in the United States, see Michael L. Radelet and Margaret Vandiver’s Capital Punishment in America: An Annotated Bibliography (New York: Garland Publishing, Inc., 1988).
7. See Amnesty International USA’s, When the State Kills … The Death Penalty: A Human Rights Issue (1989), pp. 11, 12.
8. See Walt Philbin, “Major Crime Declines in New Orleans,” Times-Picayune, November 7,1987. But despite the general decline in crime, the murder rate in New Orleans increased 16.3 percent in the third quarter, the time period immediately after the spate of executions.
By contrast, during the same time period, death penalties handed down by Louisiana juries declined sharply. From 1982 to 1987 juries averaged ten death sentences a year, but in the two-and-a-half years following the rash of executions, juries handed down only two death sentences. See Jason DeParle, “Abstract Death Penalty Needs Real Executions: Did a Spate of Executions Affect Junes? New York Times, June 30, 1991.
9. The July 26, 1991, CNN/Gallup public opinion poll indicated that of the 76 percent who said they were in favor of the death penalty, 13 percent cited deterrence as a reason, 19 percent cited protection, and 50 percent, revenge. (News Information, Cable News Network, 2200 Fletcher Avenue, Fort Lee, New Jersey 07024.)
In contrast, an earlier 1977 Harris survey cited 59 percent of respondents saying they believed that “executing people who commit murder deters others from committing murder.” This was only one year after the U.S. Supreme Court reinstated the death penalty in Gregg, and as yet only the execution of Gary Gilmore in Utah (January 17, 1977) had been carried out. However, by July 1991, when the CNN/Gallup Poll was taken, 150 criminals had been put to death with no detectable decrease in violent crimes occurring. See Louis Harris, The Harris Survey (New York: Chicago Tribune, New York. News Syndicate February 7, 1977).
10. Ted Gest and Jo Ann Tooley, “Data Base,” U.S. News and World Report, May 6, 1991: “Public’s view of the best way to reduce crime: more executions — 33%; more crime prevention measures — 65%.”
11. Marcia Blum, a graduate of Northeastern University Law School, directed the Louisiana Capital Defense Project for the first year. From her efforts and those of Judith Menadue, who followed her, has arisen the Loyola Death Penalty Resource Center, 210 Baronne Street, Suite 608, New Orleans, Louisiana 70112, (504) 522–0578.
12. Amnesty reports that these ten countries, which each carried out over fifty executions between 1985 and mid-1988, account for 83 percent of all executions recorded. See Appendix 17, Table 1 of When the State Kills (p. 263). In the same source, Amnesty reports “as of August 1988, no fewer than 28 prisoners in 12 U.S. states were under sentence of death for crimes committed when they were below 18 years of age” (When the State Kills, p. 38).
13. See Appendix 15 of When the State Kills, for Amnesty’s worldwide list of abolitionist and retentionist countries.
14. When the State Kills, p. 7.
15. Furman v. Georgia, 408 U.S. 238 (1972).
16. Currently 36 states authorize the death penalty for some types of murder: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.
The death penalty is also authorized under the Federal Air Piracy Act, 1974 (49 U.S.C. 1472–3) and under the Uniform Code of Military Justice (UCMJ), which lists a dozen crimes — felony murder, espionage, and desertion among them — as punishable by death when committed in time of war. In 1985 President Ronald Reagan signed into law an amendment to the UCMJ extending the death penalty for espionage by a member of the armed services during peacetime (10 U.S.C. 906 (a)). Federal law also authorizes the death penalty for murders committed in the course of major drug activities (21 U.S.C. 848 (e) and witness tampering where a death results (18 U.S.C. 1512).
17. Gregg v. Georgia, 428 U.S. 153 (1976).
18. Historically, a majority of U.S. citizens have consistently favored imposing the death penalty on murderers, at least as measured by responses to the question: “Do you favor or oppose the death penalty for murderers?” In 1936,62 percent said they favored the death penalty; in 1953, 68 percent; in 1972, 53 percent; in 1977, 67 percent; in 1986, 70 percent; and in 1991, 76 percent. Only in 1966, when those favoring the death penalty registered at 42 percent, has public support been less than a majority.
See H. Erskine’s survey of nationwide and statewide polls on the death penalty from 1936 to 1969: “The Polls: Capital Punishment,” Public Opinion Quarterly 34 (1970): pp. 290–307; Hugo Bedau’s “America
n Attitudes Toward the Death Penalty” in The Death Penalty in America, pp. 65–92; and Robert M. Bohm, “American Death Penalty Opinion, 1936–1986: A Critical Examination of the Gallup Polls,” in Robert M. Bohm, ed., The Death Penalty in America: Current Research (Cincinnati: Anderson Publishing Co., 1991), pp. 113–145.
19. See the annual Uniform Crime Reports of the Federal Bureau of Investigation (U.S. Department of Justice, Washington, D.C. 20530).
20. Glenn L. Pierce and Michael L. Radelet, “The Role and Consequences of the Death Penalty in American Politics,” New York University Review of Law & Social Change 18 (1990–1991): pp. 711–728, esp. p. 714.
21. See George Gallup, “The Death Penalty,” Gallup Reports 244 and 245 January/February, 1986), pp. 10–16.
A number of surveys of public opinion about capital punishment by Amnesty International have consistently found far less support for capital punishment when those interviewed were presented with specific alternatives to death, such as life without parole, and when the question about capital punishment was asked, not in the abstract: “Do you favor or oppose capital punishment for murderers?” but in the concrete: “Do you favor or oppose capital punishment for juveniles, the mentally retarded, those who have suffered child abuse,” etc. Some Amnesty International polls are summarized in James Alan Fox, Michael L. Radelet, and Julie Bonsteel, “Death Penalty Opinion in the Post-Furman Years, New York University Review of Law and Social Change 18 (1990–91): pp. 499–528, at p. 525.
22. Austin Sarat and Neil Vidmar, “Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis” Wisconsin Law Review 1976 (1976): pp. 171–197.
See also Robert M. Bohm, Louise J. Clark, and Adrian F. Aveni, “Knowledge and Death Penalty Opinion: A Test of the Marshall Hypothesis,” Journal of Research in Crime and Delinquency 28 (1991): pp. 360–387.
23. With Bill Quigley and Barbara Major I helped to found Pilgrimage for Life (now named Louisiana Coalition to Abolish the Death Penalty). It is located at Hope House, 916 St. Andrew St., New Orleans, Louisiana 70130, (504) 522–5519.
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