THE RIGHT TO LIFE
Charles Wheeler discovers that American
conservatives are turning against the death penalty
FRANK HARGROVE, a pillar of the conservative majority in Virginia's state parliament, the General Assembly, has been a lifelong supporter of capital punishment. Twenty years ago he introduced a Bill providing for public hanging from a gallows to be installed among the azaleas outside the Capitol building in Richmond. His Bill died in committee. But the Assembly went on to enact the most oppressive death-penalty statute in force in America today. Virginia's execution rate is second only to Texas.
Three weeks ago the same Frank Hargrove tabled a Bill to abolish Virginia's death penalty. He no longer believes it to be a deterrent, he told me. He thinks that innocent people have probably been executed. Besides, execution is no longer needed: the alternative sentence of life without parole both satisfies public opinion by keeping murderers off the streets, and avoids the awful finality of putting them to death. Hargrove doesn't expect his Bill to be passed. But he predicts, perhaps rashly, that in three or four years Virginia's death penalty will be history.
Watching Americans pick at the issue of capital punishment, I'm reminded of the 1960s, when southerners who had supported race segregation all their lives quietly came to terms with civil rights. Something similar may be happening again. In 1972 a liberal US Supreme Court struck down capital punishment. Citing race discrimination, the poor quality of court-appointed defence counsel and the risk of executing the innocent, it declared the death penalty to be a violation of the constitution's ban on cruel and unusual punishment. Three years later, a more conservative court invited the states to draw up new death-penalty statutes. Thirty-eight did so; 12 did not. Today, nobody expects this Supreme Court, with its prodeath-penalty majority and reluctance to trample on states' rights, to intervene again. Similarly, no one expects a lead from the President from Texas, George W. Bush. At best, change will come gradually, in the shape of piecemeal reforms at state level.
Illinois has led the way, beginning with a remarkable investigation in the Chicago Tribune of all 285 trials ending in a death sentence since the state reintroduced capital
punishment in the late 1970s. According to the newspaper, 33 death-row inmates had been defended by court-appointed lawyers who had been, or were subsequently, disbarred. In 46 cases the prosecutor had used testimony acquired in a deal with a 'jailhouse snitch'. And 35 black defendants were sent to death row by all-white juries.
The Tribune series impressed the state's Republican governor, George Ryan, who was already wondering why Illinois was having to exonerate more death-row inmates than it was able to execute — an imbalance of 13 to 12. Ryan was also troubled by the erratic record of the state's appeal courts. No fewer than five men convicted of murder and rape in their late teens and early twenties had been freed after students of journalism had demolished the state's case against them and proved their innocence. Three of the five had spent 18 years on death row. The two others were serving sentences of life without parole and 135 years' imprisonment.
Across America more than 90 death-row inmates have so far been exonerated, and recent cases have attracted widespread publicity. So has Governor Ryan's decision last summer to halt executions in Illinois. He promises that the moratorium will stay in force until a special commission has examined all aspects of the state's capital-punishment system and changes are in place.
Many critics of America's capital-punishment system regard the poor quality of defenders as its principal failing. As one eminent judge told an unsuccessful appellant, 'The constitution guarantees everyone a lawyer, not a good one.' Texas — only one of the southern 'death-belt' states without any proper system of legal aid, pays its court-appointed lawyers as little as $12 an hour and makes no provision for investigators and expert witnesses. Stories abound of defendants represented in capi• tal trials by tax lawyers or attorneys who have never before taken a criminal case. In Georgia, a black man was defended by a former Grand Dragon of the Ku Klux Klan. Texas judges have repeatedly appointed a lawyer famed for falling asleep while the prosecutor questions witnesses; ten of his clients have been sentenced to death. A study of murder trials in Philadelphia found that judges often appointed lawyers chosen for their political connections, among them 'ward committee-men, failed politicians, the sons of judges and political leaders, and contributors to judges' election campaigns'.
Not surprisingly, it's the human stories that feed the death-penalty debate: cases such as that of Earl Washington, the retarded son of alcoholic parents. In 1983 he got drunk, assaulted a neighbour, and stole money and a pistol. Washington pleaded guilty and was sent down for 30 years. Police then questioned him about four other, unsolved crimes. Obligingly, he confessed to them all. Convicted of one — the murder and rape of a young mother — he was sent to death row. Thanks to a lawyer who has spent 16 years on his case, and to two DNA tests, Washington escaped execution. He is now free and on his way to Virginia Beach, where he will be cared for in a small private home for the mentally disabled.
What may prove to be even more telling, however, is a five-year-long study commissioned by the Judiciary Committee of the US Senate and carried out by the Columbia School of Law in New York. Its conclusion is that America's capital-punishment system is collapsing under the weight of its own mistakes.
Researchers examined every deathpenalty appeal between 1973 and 1995. What they found was mind-blowing. Altogether, 2,370 death sentences — that's 68 per cent of the total handed down by state courts over those 22 years — had to be thrown out on review because of serious error. On retrial, 80 per cent of those death-row inmates were found not to deserve a death sentence, while 7 per cent were found not guilty of a capital crime.
The whole system is patently irrational. If the trial courts were car factories, such a high failure rate would bring bankruptcy. As it is, operating the multi-tiered appellate process needed to catch so much error is hugely expensive — some put it at millions of dollars per case — and it takes an inordinate amount of time. America today has just over 3,700 men and women on death row. Clearly, an overwhelming majority shouldn't be there. And, though no more than about one in ten inmates will ever be executed, the wrongly sentenced are having to wait for anything from ten to 18 years to be told of their fate. That's not unusual, but it is certainly cruel.
Charles Wheeler's documentary, Death Row on Trial, will be broadcast in BBC 2's Correspondent programme on 17 February.
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