The Successes of Human Rights Organizations in Abolishing the Death Penalty Amnesty International British Section Meetings Edinburgh, Scotland April 8, 1995 Michael L. Radelet University of Florida radelet@nervm.nerdc.ufl.edu I. Introduction How can we be optimistic about the death penalty in the 1990s? It would be easy if we all were prosecutors or funeral directors. It would be easy if we held stock in Federal Express, the company that is the main beneficiary of the flurry of lastminute appeals that are common in death cases. On the surface, America loves the death penalty for the same reasons we love mom, apple pie, and Mickey Mouse. The death penalty is a great symbol - - often political campaigns in America see both candidates promising to outkill each other. Most Americans believe that we abolitionists have been beaten and humiliated, and that the friends of the executioner are winning easy victories in virtually every battle fought today. Yet, a closer inspection of the facts will show that in the last forty years, in the struggles to end the death penalty, the abolitionists have had the upper hand. In battle after battle during our lifetimes, abolitionists have won major victories, and have been tremendously successful in restricting the use of the death penalty. Consider the following ten victories: II. Ten Successes 1. There are fewer capital crimes. Four decades ago, persons could be and were sentenced to death and executed not only for murder, but dozens of other crimes were also punishable by death in at least one jurisdiction. Today the death penalty is virtually limited to the crime of first degree murder. Most importantly, in 1977 the death penalty was abolished for rape (England did this in 1841). 2. There is no mandatory death penalty. When we were born, death was the mandatory punishment for many crimes in one or another American jurisdiction. Since 1987, the death penalty has been abolished as a mandatory punishment for all crimes, even for a prisoner who kills while serving a life sentence. The result is that even the worst cases are potentially winnable. 3. Death sentences must be justified. Until 1972, the trial courts that did have sentencing discretion were free to exercise it without any obligation to justify its fairness. In 1972, the U.S. Supreme Court, in the famous case of Furman v. Georgia, abolished the death penalty, forcing states to go back to the drawing boards and devise new ways to make their life-and death decisions. As a result, today's judges and jurors must at least pretend that they have statutorily-defined aggravating reasons to vote for condemnation. We are learning more about how jurors think. More and more we are learning how to shift the debate from a focus on the crime to a focus on prevention and life-long victimization. We have won the opportunity to teach the jury about the causes of criminal violence. 4. Fewer jurisdictions have the death penalty. In the late 1940s, only six states were completely without the death penalty. Today 12 states and Washington D.C. are abolitionist jurisdictions. Four other states have only a nominal death penalty statute, with no inmates on death row. Internationally, the executioner has been banned from every western democracy, dozens of other countries, and over the last decade an average of one country per year has joined the abolitionist ranks. Even South Africa no longer executes, at least for now. 5. Few jurisdictions actually carry out executions. In the 1950s, America had executions in any of three dozen states stretching from coast to coast, Canada to Mexico, and in the District of Columbia. In contrast, since 1972 only seven states have had more than ten executions (TX, FL, VA, LA, GA, MO, and AL). Furthermore, excluding consensual executions, there have been only about a dozen executions outside the former states of the Confederacy. Three of the top five death sentencing states combined -- California, Illinois, and Pennsylvania -- have seen a total of only four? nonconsensual executions. 6. Few death sentences are actually imposed, Even in a state like Florida, where we love the executioner, only about 3 percent of those arrested for murder are sentenced to death. Furthermore, some data suggest that once a state proves it can kill as many folks as it wants, the appetite for killing decreases. Today there are some 3,000 people on America's death rows, including 350 in Florida. The number of condemned inmates in Florida has grown by only 25 inmates in the last five years. Georgia's death row population has remained constant for a dozen years. In Louisiana, the death row population has dropped from 52 in 1987 to 41 today. 7. Once a person is sentenced to death, he or she is far from dead. When I was born, people were sentenced to death and executed without any assurance of review by the state's highest appellate court, much less any review in federal courts. Today, review of every death sentence by relevant state courts is required by law, and further review in federal courts is a virtual certainty. According to one justice, the Florida Supreme Court is now spending half its time on death penalty cases. One result is that executed inmates have had their lives extended by many years. In the late 1940s, on any given day, there were about a hundred inmates awaiting execution in American jurisdictions. Rarely did they stay on death row for more than a year. Today the average stay on execution for those executed is nearly ten years. More importantly, a second result of appellate review is that half of those sentenced to death in the U.S. in last 20 years have had their death sentences vacated on appeal. What a tremendous victory! Here in Great Britain you always hear about executions, and rarely about cases in which the death sentence is vacated. In short, as every death row inmate knows, there are plenty of reasons for hope and optimism. Americans may like to sentence people to death, but we should be optimistic in that there is little evidence to show that they actually have the appetite for large-scale executions. 8. The pace of executions has slowed. During the 1940s America averaged about 120 executions per year; during the 1950s there was an average of 72 executions per year. Today we are executing at 1/2 the pace of the 1950s; averaging 33 executions over the last three years, and 18 in the five years before that. The pace of executions has not really increased in a decade -- each year since 1984 or so, only about one percent of those on death row are executed. Since 1972, only about 4 percent of the 800 death sentences handed down in Florida have resulted in an execution. What a tremendous victory. In the last 26 years there have been a total of 257 executions in America (through 1994), which is just over the yearly average during the 1930s, and far, far less than anyone would have predicted a decade ago. Even if present rates of execution were to double, it will still take 45 years to clean out the backlog of those on death row in America today. 9. Since 1972, there have now been over 50 inmates from America's death rows who have been released because of innocence. Often these releases come only after hard fought battles, and members of Amnesty International are often the ones to thank for fighting those battles. Next time you feel too tired to write a post card or send a FAX, remember these 50 people. 10. Each year, more and more citizens and organizations join our cries of protest. Up through the 1960s, few organizations took a stand on the death penalty. In the last few years, virtually every human rights, civil rights, and civil liberties organization in the world has condemned the death penalty. The leaders of virtually all Christian and Jewish religious denominations, with the notable exception of the Southern Baptists, have gone on record as opposing the death penalty. In short, our abolitionist ranks are growing steadily, both qualitatively and quantitatively. We are not alone. * * * In sum, the history of the death penalty in America over the last 40 years clearly shows it is on its way out. As we enter the late innings of this long contest, the abolitionists are way out in front. If you stand opposed to executions, there are plenty of reasons for optimism. III. Death Penalty Arguments The above dozen victories have all occurred over the last 40 years. What has happened in the last decade? One obvious trend is that over the last decade, the popular and political arguments supporting America's use of the death penalty have been undergoing rapid and extremely significant changes. Just in the last decade have witnessed the destruction of several pro-death penalty arguments. Consider five of them. First, since it has now been established that executions cost several times more than an alternative sentence of life imprisonment without parole, responsible retentionists no longer claim that the death penalty will save the money needed to feed murderers for the rest of their lives. Second, the argument that executions will deter future murderers is endorsed by virtually no contemporary criminologists. In fact, according to a 1991 Gallup Poll, only 51 percent of Americans believe the death penalty has deterrent effects, a drop of 11 percent from just 6 years ago. All those complex statistical arguments on deterrence boil down to this: if you want to deter someone from leaning on your cooker, medium heat works just as well as high heat. The public is learning that lesson. Third, we now know that we do not need to kill people to keep them from killing again. Among those whose death sentences were commuted in 1972, only about one percent have gone on to kill again, a figure that is almost identical to the probability of later being found to be innocent. Fourth, Americans are beginning to realize the death penalty is racist and class biased: the 1991 Gallup Poll found that 45 percent of Americans believed the death penalty was biased against black defendants, and 60 percent agreed that poor people are more likely than others to get it. Fifth, death penalty retentionists have been forced to admit that as long as we use the death penalty, innocent defendants will occasionally be executed. That leaves the executioner's friends with only one argument: retribution. Finally, we have gotten down to the nitty gritty: we want to kill people because we hate their guts. But we can be optimistic even in dealing with this argument. Retribution is a moral issue, and since our country's moral leaders are already in our corner, we have some pretty good ammunition for the fights ahead. Now that most formal religious organizations have endorsed statements in favor of abolition, no longer are Old Testament religious arguments in favor of the death penalty widely annunciated. Furthermore, there is evidence that even retribution has its limits. The 1991 Gallup Poll asked respondents what method of killing they preferred. About 2/3 favored lethal injection, up ten points from six years before. This preference is no doubt fueled by the belief that inmates suffer too much if left to cook in the electric chair; if you were really into retribution, you would favor slow boiling or perhaps starvation. Americans might hate death row inmates -- and for good reasons -- but they feel a little bit uncomfortable doing so, and hatred has its limits. It is more polite to talk about deterrence than it is to admit to hatred. In short, it's a good sign when people start to realize that even retribution has limits. IV. Public Opinion Let me say a few more things about public opinion, because it represents a tremendous accomplishment for which many activists here in this room today can take credit. Today we are constantly being told that a majority of the public wants more and more executions. But low and behold, a close inspection of those polls shows that support for the death penalty is, in fact, a mile wide and an inch deep. In fact, a close inspection shows that abolitionists can now go to politicians and demand that they do what the public wants -- and the public will support the abolition of the death penalty. The best data on public support for the death penalty comes from Gallup Polls, and each year they find that something like three quarters of the American population supports the death penalty. However, Gallup also found that only 53 percent of the population supports the death penalty given an alternative of life imprisonment without parole. This is precisely what the alternative already is in 32 states, but our polls in Florida nonetheless show that the average Florida erroneously believes that absent execution, the murderer will be back on the streets within 10 years. 53 percent is not that horrible. When additional questions probe attitudes given no deterrence, high cost, racial bias, or other features of modern death sentencing, death penalty support quickly drops to a minority position. In short, it is time for American legislators to do what the citizens want and abolish the death penalty. V. Conclusion The conclusion of my remarks is that the seeds for the total abolition of the death penalty are already in the ground. We don't have to change public opinion as much as we have to educate and coalesce groups that we know will join our fight. Activists here in Great Britain are helping to make it respectable for death penalty abolitionists to come out of the closets. There is no question that there are many thugs in legislatures, on the courts, and in prosecutors' offices, and from their language of hate it is very clear that they would love to kill many more people than they are already killing -- so thank God that there are activists like yourselves who are throwing wrenches into their gears. Like a surgeon, we will lose some of our patients, but we need to learn from each case and keep remembering that even though some patients will die, our goal is to eliminate the disease. If we keep our eye on that prize, and remember that history is on our side and step back occasionally to see the tremendous progress that we are making, the fight against the death penalty will soon end in victory. From jthomas Thu May 18 11:01 CDT 1995 Return-Path: Received: by sun.soci.niu.edu (5.0/SMI-SVR4) id AA15569; Thu, 18 May 1995 11:01:49 -0500 Date: Thu, 18 May 1995 11:01:48 -0500 (CDT) From: Jim Thomas X-Sender: jthomas@sun To: Critical Criminology - ASA Subject: Forwarded mail.... Message-Id: Mime-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Content-Length: 9139 ---------- Forwarded message ---------- Date: Thu, 18 May 95 08:41:26 EDT From: Mike Radelet To: Jim Thomas Post-Furman Botched Executions Michael L. Radelet University of Florida radelet@nervm.nerdc.ufl.edu May 10, 1995 1. April 22, 1983. Alabama. John Evans. After the first jolt of electricity, sparks and flames erupted from the electrode attached to his leg. The electrode then burst from the strap holding it in place and caught on fire. Smoke and sparks came out from under the hood. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg. More smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, Russ Canan (202-393-7676), a third jolt was applied. The execution took 14 minutes and left Evans's body charred and smoldering. Canan describes the experience in M.L. Radelet (Ed.), Facing the Death Penalty: Essays on a Cruel and Unusual Punishment (1989). (See also Glass v. Louisiana, 471 U.S. 1080 (1985)). 2. Sept. 2, 1983. Mississippi. Jimmy Lee Gray. Officials had to clear the room eight minutes after the gas was released when Gray's desperate gasps for air repulsed witnesses. His attorney, Dennis Balske of Montgomery, Alabama, criticized state officials for clearing the room when the inmate was still alive. Says David Bruck, "Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press)" (Bruck, New Republic, Dec. 12, 1983 at 24-25). 3. December 12, 1984. Georgia. Alpha Otis Stephens. After the first jolt of electricity failed to kill him, Stephens struggled for eight minutes before a second charge finished the job. The first jolt took two minutes, and then there was a six minute pause so his body could cool before physicians could examine him (and declare that another jolt was needed). During that sixminute interval, Stephens took 23 breaths. 4. March 13, 1985. Texas. Stephen Peter Morin. Had to probe both arms and legs with needles for 45 minutes before they found the vein. 5. October 16, 1985. Indiana. William E. Vandiver. He was still breathing after the first administration of 2,300 volts, and the current had to be applied three more times before he died. Vandiver's attorney, Herbert Shaps, witnessed the killing and said it was outrageous. The Department of Corrections admitted the execution "did not go according to plan." The physician who pronounced death said, "This is very rare." 6. August 20, 1986. Texas. Randy Woolls. A drug addict, Woolls had to help the execution technicians find a good vein for the execution. 7. June 24, 1987. Texas. Elliot Johnson. It took 35 minutes to insert the catheter into his vein. 8. December 13, 1988. Texas. Raymond Landry. Pronounced dead 40 minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms. Two minutes into the killing, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. The execution team had to reinsert the catheter into the vein. The curtain was pulled for 14 minutes so witnesses could not observe the intermission. 9. May 24, 1989. Texas. Stephen McCoy. He had such a violent physical reaction to the drugs (heaving chest, gasping, choking, etc.) that one of the witnesses (male) fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction. The Texas Attorney General admitted the inmate "seemed to have a somewhat stronger reaction," adding "The drugs might have been administered in a heavier dose or more rapidly." 10. July 14, 1989. Alabama. Horace F. Dunkins. It took two jolts (nine minutes apart) to kill this mentally retarded inmate. The foul-up was caused by "human error:" faulty cable hookups. As a result, there was not enough current to cause death. His attorney was Steve Ellis of Philadelphia. Death was pronounced 19 minutes after the first jolt. 11. May 4, 1990. Florida. Jesse Joseph Tafero. When the state replaced a "natural" sponge with a synthetic sponge in the headpiece of the execution apparatus, six-inch flames erupted, and three jolts of power were required to stop Tafero's breathing. Support for the state's faulty sponge theory was generated by sticking a part of it into a "common household toaster" and noting that it smoldered and caught fire. Extensive investigation by the office of the Capital Collateral Investigator in Tallahassee questioned this theory, as other states have used synthetic sponges with no problems. 12. October 17, 1990. Virginia. Wilbert Lee Evans. During the electrocution, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood. Evans continued to moan after the first jolt of electricity was applied. The autopsy concluded that the blood resulted from high blood pressure brought on by the electrocution. 13. August 22, 1991. Virginia. Derick Lynn Peterson. After a physician determined that the first cycle of electricity had failed to kill Peterson, a second cycle was required. It was the second time this electrical equipment had been used since Virginia's electric chair had been moved to Greenville from the state's old death house in Richmond. In the aftermath of the execution, prison officials announced that in the future they would routinely administer two cycles before checking for a heartbeat. 14. January 24, 1992. Arkansas. Rickey Ray Rector. It took medical staff more than 50 minutes to find a suitable vein in Rector's arm. Witnesses were not permitted to view this scene, but reported hearing Rector's loud moans throughout the process. During the ordeal Rector (who suffered serious brain damage from a lobotomy) tried to help the medical personnel find a vein. The administrator of State's Department of Corrections medical programs said (paraphrased by a newspaper reporter) "the moans did come as a team of two medical people that had grown to five worked on both sides of his body to find a vein." The administrator said "That may have contributed to his occasional outbursts." 15. March 10, 1992. Oklahoma. Robyn Lee Parks. Parks had a violent reaction to the drugs used in the lethal injection. Two minutes after the drugs were administered, the muscles in his jaw, neck, and abdomen began to react spasmodically for approximately 45 seconds. Parks continued to gasp and violently gag. Death came eleven minutes after the drugs were administered. Said Tulsa World reporter Wayne Greene, "The death looked scary and ugly." 16. April 23, 1992. Texas. Billy Wayne White. It took 47 minutes for the authorities to find a suitable vein, and White eventually had to help them. 17. May 7, 1992. Texas. Justin Lee May. May had an unusually violent reaction to the lethal drugs. According to Robert Wernsman, a reporter for the Item (Huntsville), May "gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze ..." Associated Press reporter Michael Graczyk wrote, "He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down. After he stopped breathing, his eyes and mouth remained open." 18. May 10, 1994. Illinois. John Wayne Gacy. After the execution began, one of the three lethal drugs clogged the tube leading into Gacy's arm, and therefore stopped flowing. Blinds covering the window through which witnesses observed the execution were then drawn. The clogged tube was replaced with a new one, the blinds were opened, and the execution process resumed. Anesthesiologists blamed the problem on the inexperience of prison officials who were conducting the execution, saying that proper procedures taught in "IV 101" would have prevented the error. 19. May 3, 1995. Missouri. Emmitt Foster. Foster was not pronounced death until 30 minutes after the executioners began the flow of deadly chemicals into his arms. Seven minutes after the chemicals began to flow, the blinds were closed to prohibit the witnesses from viewing the scene; they were not reopened until three minutes after death was pronounced. According to the coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Foster to the execution gurney; it was so tight that the flow of chemicals into the veins was restricted. It was several minutes after a prison worker finally loosened the strap that death was pronounced. The coroner entered the death chamber twenty minutes after the execution began, noticed the problem, and told the officials to loosen the strap so the execution could proceed.