Gridlock on Death Row

Gridlock on Death Row

Death row

Supreme Court decisions--2000

Capital punishment--Cases

This Newsweek article uses the failed death row appeal of Warren McClesky by the Supreme Court to bring up complicated issues surrounding capital punishment. Writers argue that the Supreme Court and most in the legal system admit there is racial bias involved when giving someone the death penalty. Even when people are on death row, they rarely are killed immediately or at all. The writers argue that amending the death penalty involves a complex case-by-case process that faces challenges of racial discrimination and lack of appeal lawyers.

McDaniel, Ann

Calonius, Erik

Raine, George

Smith, Vern

Murr, Andrew

Shapiro, Daniel

Newsweek

HIST 298, University of Mary Washington

1987-05-04

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English

United States

The U.S. Supreme Court rejects a key challenge to capital punishment.

In Illinois last week, 105 inmates sat on death row, only one facing a likely execution before 1989. In California, 171 killers waited to walk the Last Mile, but only one is close to going to the gas chamber this year. In Florida, the nation’s largest colony of the condemned held 268; none had a set appointment to die. And even in Texas, where capital punishment has been used most often recently, 250 convicted murderers were just marking time in their cells: the state averages but one execution a month.

After 11 years of work, lawyers, courts, and killers have managed to create a system of capital punishment that satisfies no one. Proponents write stern statutes, win convictions and then watch the expanding gridlock on death row. Abolitionists anguish over public opinion and unyielding laws yet succeed in blocking most executions because of flaws in the state’s case or procedures. Families of victims have neither peace nor vengeance; killers, no certain punishment; justice, no resolution.

This erratic system appears certain to continue staggering on for at least a few more years despite a landmark U.S. Supreme Court decision last week. By a 5-4 vote, the justices rejected a challenge by condemned killer Warren McCleskey to Georgia’s death-penalty practices. McClesky, a black man who killed a white cop, based his claim on a statistical finding that in Georgia, killers of whites were four times more likely to be sentenced to die than killers of blacks. The argument had broad implications: three quarters of the 1,874 inmates on death rows nationally killed whites, so a decision for McCleskey could have arguable barred most executions for the rest of the decade.

Writing for the majority, Justice Lewis F. Powell Jr. concluded that McCleskey’s numbers alone did not prove enough to validate Georgia’s death penalty. While acknowledging that the statistics “indicate a discrepancy that appears to correlate with race,” McCleskey had no clear evidence that he was a victim of racial bias. “Apparent disparities in sentencing are an inevitable part of our criminal justice system,” Powell wrote. “Despite these imperfections our consistent rule has been that constitutional guarantees are met” with procedural “safeguards” that make trials “as fair as possible.” Tired of the pleas to strike down the death penalty, Powell pointedly invited opponents to bring their statistical arguments to the state legislatures-and not judges.

The dissenting opinions by four justices- William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens- were significant for two reasons. First, there was the expected debate with the majority over the case itself, with the dissenters insisting that McCleskey’s evidence was stronger than the court had required in other cases. “Surely,” declared Brennan, “we should not be willing to take a person’s life if the chance that his death sentence was irrationally imposed is more likely than not.”

Blood bath: Second, and symbolically important, the four justices held that the capital-punishment system appeared impermissibly stained by racial bias. The process, concluded Brennan, “reflects a devaluation of the lives of black persons.” That’s an unusually powerful statement, and one that could echo in later cases.

The decision but McCleskey and a handful of other inmates-mostly in Texas-in immediate peril. An execution date for McCleskey may be set within the next month, with a few others to follow. “Everybody was really waiting for this case,” says a Georgia Department of Corrections spokesman, John Siler. “We even had one stay of execution for a white guy with a white victim.” But if the wait is over, neither side is predicting an imminent blood bath. Instead, most experts predict a gradual increase in executions-one much slower than the population explosion on death row-and a shift in the legal fight from broad challenges like McCleskey’s to case-by-case combat.

More pleas: On the same day as the McCleskey decision, the justices themselves showed they were open to minimalist approach. In a Florida case, they unanimously ruled that a trail judge had improperly prevented killer James Ernest Hitchcock from pleading “mitigating circumstances” to the jury. There was no question of Hitchcock’s guilt. He was sentenced 11 years ago, but now he will wait for a new sentencing hearing in front of a jury and, even if he loses, he will be entitled to another round of appeals. Two dozen other death-row inmates will piggyback on Hitchcock’s success and will likely ask for new hearings as well.

But that victory came too late for Ronald Straight. Lawyer Michael Mello, who spent several years in Florida specializing in death-penalty cases, last year tried to postpone Straight’s execution by arguing a claim similar to Hitchcock’s. Mello lost. “I had an awful time getting to sleep last night thinking about Ronald Straight,” Mello said last week. “It’s exactly what’s wrong with the death penalty.” Straight could have won a hearing under last week’s ruling. “Now he’s dead.”

The increased emphasis on individual appeals will put more pressure on one of the weakest links in the system: the shortage of lawyers to handle the appeals. Their efforts are not frivolous foot dragging; according to Columbia University law professor Jack Greenberg, a leader of the anti-death-penalty movement, courts reversed about 45 percent of the death sentences they reviewed between 1982 and 1985. Many of those cases were handled by legal-aid or volunteer lawyers. But the burden is considerable: a survey by Boston lawyer Bob Spangenberg found that a lawyer devotes 2,000 hours and spends $30,000 out of pocket on an average appeal. Groups like the American Bar Association are trying to attract new recruits and encourage states to support such appellate work. And courts are beginning to worry about the quality of the lawyers handling death-row appeals. A federal appeals panel in Florida and a federal trial judge in Virginia have sharply criticized the haphazard quality of the volunteer systems.

On capital punishment, no problem ever seems to be fully addressed. Already, strategists are looking for ways to differentiate their appeals from McCleskey’s. In a Utah case, for instance, lawyer Timothy Ford wants to present evidence of discrimination based on the defendants race rather than that of the victim, since blacks and Hispanics make up a disproportionate percent of the population on death row (chart). And in California, lawyers are discussing whether a McCleskey-style case might work as a state constitutional claim, a long shot given the appointments to the bench by conservative Gov. George Deukmejian. “Surely there will be other issues, some we have not dreamed of,” says Steve White, California’s chief assistant attorney general. In the meantime, a flawed system will continue to blunder along.

Magazine

Burrows, Courtney

Dickinson, Terra