January 8, 2001 THE NATION

Death Trip: The American Way of Execution

by Robert Sherrill

"Capital punishment is to the rest of all law as surrealism is to realism. It destroys the logic of the profession."
Norman Mailer, The Executioner's Song

If you tried to sell death-penalty stock on Wall Street, the Securities and Exchange Commission would have you prosecuted for fraud. Capital punishment doesn't achieve any of the things its backers promise it will, and it is a spectacular waste of time and money.

Among the major Western nations, the United States has for a long while been alone in punishing murderers with some form of execution. Why do we hang on to the penalty? For one thing, we're suckered by our politicians into thinking we're more bloodthirsty than we really are. But also, maybe we're still addicted to the religious fundamentalism (Old Testament approval of lethal vengeance) that's been a part of our social thinking since colonial days. Or maybe we still feel a residual pull to the savage entertainment (bare-knuckle boxing, eye-gouging wrestling, eight-inch-knife fights à la Jim Bowie) of frontier days.

Capital punishment fits right in with those entertainments. But why has the job of running this grisly circus been turned over to such knuckleheads? Americans are supposed to be scientifically proficient, and electricity and deadly chemicals have certainly been around long enough for us to get the hang of using them. But time after time our brilliant executioners have messed up. Michael Radelet, an authority on capital punishment, has compiled a list of thirty-two botched executions since 1982. These from Florida will give you an idea of why they don't allow the public to attend.

When Jesse Joseph Tafero was electrocuted in 1990, witnesses said footlong blue and orange flames shot from the right side of his bobbing head. It took four minutes and three 2,000-volt jolts to finish him off (later, evidence came to light indicating he was innocent of murder). When Pedro Medina was electrocuted in 1997, it happened again. Flames from his head. When the execution was finished, the fire was patted out by a maintenance supervisor wearing asbestos gloves. Another official opened a window to disperse the smoke in the execution chamber. State officials decided it was time to retire "Old Sparky," as they fondly called the chair, and build a new one. Allen Lee Davis was the first to sit in it, last year. The executioner pulled the switch and blood poured from Davis's mouth. OK, that did it. It was time for something new to improve appearances. Florida would try poison. On June 8, 2000, Bennie Demps lay on the gurney while technicians struggled for thirty-three minutes to get the needle into four veins in three places. Demps shouted into the microphone dangling over his head: "They butchered me back there. I was in a lot of pain. They cut me in the groin, they cut me in the leg. I was bleeding profusely." The warden of the penitentiary claimed Demps was just "griping." What a bad sport.

When you come right down to it, these botched executions are merely sideshows and beside the point. Someday the penal folks will probably manage to get all the kinks in the execution process smoothed out and they'll be able to kill without a lot of flames and needle-jabbing. But the big question will remain: Why do we want this circus anyway?

Maybe We're Not So Heartless

It's true that polls usually show that Americans back the death penalty, 2 to 1. But it hasn't always been that way. In part of the 1950s and much of the 1960s, a majority of Americans said they opposed capital punishment, and in 1968 the US Supreme Court regarded death-penalty supporters as a "distinct and dwindling minority." They might have continued to dwindle if Republicans--Richard Nixon seeking the presidency in 1968 and Ronald Reagan seeking the California governorship in 1972--had not ignited the penalty as a national campaign issue. And the pro-death mob really got worked up (moving approval for the penalty toward 80 percent) after Willie Horton was thrown onto the fire in the elder George Bush's 1988 presidential campaign.

But now support for the penalty is moderating. Several polls, including a recent one by Gallup, show that when people are asked if they would prefer to have murderers sentenced to death or to life without possibility of parole, opinion splits, 50-50. And some polls show death losing. A Wall Street Journal poll in July found that because of the doubts that DNA testing had raised about the accuracy of some sentences, 63 percent favored suspending the penalty until questions of its fairness could be fully studied. Even without further testing, 42 percent said they thought the penalty was unfair (the same percentage thought it was fair; the rest said they weren't sure).

The kinder polls result from growing awareness that innocent people are probably being executed. After all, eighty-nine people have been released from death row since 1973 because evidence of their innocence has emerged--thirty-eight since 1993. Some of the innocent ones among the thousands now waiting for execution simply won't have that kind of luck.

Geographically, the popularity of executions seems extremely limited. Thirty-one states have used the death penalty in the past quarter-century, but six states account for two-thirds of the executions, and ten states account for 82 percent. Texas alone accounts for more than one-third. Of the eighty-four executions in the nation this year, forty, or almost half, were in Texas--the largest number of executions in any one year in any state in the nation's history. But wait. Look at what's happening nationally. Executions are down 14 percent from the ninety-eight in 1999, and the Justice Department's latest figures for people sentenced to die in 1999 are significantly below the average for the past five years (272 versus 300).

Killing for Votes

The death penalty seems to be a kind of gruesome flypaper that ambitious politicians get stuck on. Bill Clinton, for example. No Republican was going to out-tough him. Running for President in 1992, then-Governor Clinton interrupted his New Hampshire campaign to return to Arkansas and preside over the execution of Rickey Ray Rector, a black man sentenced to death by an all-white jury for killing a cop. After shooting the cop he tried to commit suicide but succeeded only in performing a lobotomy on himself, thereby becoming so mentally retarded he didn't know what an execution was. He saved a piece of pie from his last meal because he thought he was coming back to his cell.

In 1994, with much publicity, Clinton signed an act expanding the federal death penalty to cover sixty crimes, including three that don't involve murder. Two years later, another election year, he signed the Antiterrorism and Effective Death Penalty Act, which makes it much, much harder for murder defendants to have their habeas corpus appeals--their claims of unfair, unconstitutional trials--heard in federal courts. These actions were featured in his first three re-election campaign ads on TV.

But George W. Bush has exploited the death penalty even more lavishly than Clinton. Texas has executed 239 since the Supreme Court revived the death penalty a quarter-century ago, and more than half (152) were executed after Bush became governor in 1995; his execution chamber has been by far the most active in the nation, killing an average of one prisoner every two weeks. One of Bush's first acts as governor was to reject the clemency plea for Mario Marquez, whose severe brain damage left him with an IQ of 60 and the skills of a 7-year-old. Although the Texas Senate is very conservative, it passed a bill to bar the execution of profoundly retarded prisoners; the House was about to approve it, too, when Bush blocked further action by saying, "I like the law the way it is right now." In an interview shortly before the execution of born-again Christian Karla Faye Tucker in 1998, he was said to have mimicked her plea for mercy. During his presidential campaign reporters asked him if he was bothered that some indigents on Texas's death row had been represented by lawyers who slept though part of their trials; he responded with a chuckle. In his first year as governor, George W. easily persuaded the legislature to shorten the process for death-penalty appeals. This program of speedy executions has been adopted as a model by brother Jeb, Governor of Florida, who got his Republican legislature to pass a shorter appeals process. Brad Thomas, Jeb's top adviser on capital punishment, told the St. Petersburg Times, "What I hope is that we become more like Texas. Bring in the witnesses, put them on a gurney and let's rock and roll."

The really pervasive political use of executions is right down at the grassroots. In most states with the death sentence, judges are elected. This includes state Supreme Court justices. And if they help overturn even one death sentence (as Justice Penny White, a Democrat, learned in Tennessee) their political opponents will run them off the bench by charging them with "favoring the rights of criminals over the rights of victims." The most famous exhibition of this sort was in California in the days when Chief Justice Rose Bird and her allies on the bench reversed sixty-six of the sixty-eight death sentences they reviewed. A Republican crusade swept them out of office. Particularly in the South, some judges and attorneys general campaign like Savonarola. Many may justifiably campaign that way because they had previously been prosecuting attorneys who, in highly publicized trials, sent many a criminal to his grave. Charlie Condon became South Carolina's attorney general in 1994 by reminding voters that he had put eleven men on death row.

Never Trust a Prosecutor

Misconduct abounds. Prosecutors who bully, lie and misuse or hide evidence are as common as baseball players who chew gum. In all the most active capital-punishment states, prosecutors often build their cases by hiding evidence and using jailhouse snitches eager to lie in return for lower sentences for themselves. They also rely on junk science, such as the widely discredited use of hair comparisons as forensic evidence. And then there are the psychiatrists. In Texas the death penalty cannot be imposed unless the jury unanimously agrees that if turned loose the defendant would likely kill again. Prosecutors know which psychiatrists--"killer shrinks," critics call them--are most useful. One of their favorites is Dr. James Grigson, who has examined hundreds of capital defendants and predicted 80 percent would be forever dangerous. Randall Dale Adams, accused of killing a Dallas policeman, was sentenced to death after Dr. Grigson testified that he was an "extreme sociopath" and that there was "about a one thousand percent" chance he would always be a threat to society. (After the documentary The Thin Blue Line focused on prosecutorial misconduct in Adams's case, he was released from prison, having served twelve years. Adams is now married, employed and living a nonviolent life.) In 1995 the American Psychiatric Association--which has found that two out of three predictions of long-term future dangerousness are incorrect--expelled Grigson for what it considered extravagantly untrustworthy courtroom testimony in a number of cases. He said the APA is "a bunch of liberals who think queers are normal." Texas prosecutors continue to use him. They also use the testimony about dangerousness from psychiatrists who have never even talked to the prisoner in question.

And the Texas Department of Criminal Justice's chief psychologist helped send nine men to death row by arguing that they were a future menace to society because they were Hispanic or black.

A majority of the justices on Illinois's Supreme Court said capital punishment is unconstitutional because it allows politically ambitious prosecutors too much discretion in choosing whether to seek that penalty.

Example: Among the dozen men freed from Illinois's death row in recent years are Rolando Cruz and Alejandro Hernandez, who were convicted in 1985 of the abduction-rape-murder of 10-year-old Jeanine Nicarico in 1983. With the local prosecutor up for re-election in three weeks, the police, under intense pressure to make arrests for the girl's murder, acted on an anonymous phone tip (or so they said) and scooped up Cruz and Hernandez. Not long after their first conviction, a repeat sex offender and murderer, Brian Dugan, confessed to six rape-murders, including Nicarico's. The prosecutor paid no attention to Dugan's confession and continued to pursue Cruz and Hernandez when they won new trials on the old charge. This time Hernandez got only eighty years, while Cruz went back to death row. And there they stayed until--ten years, six months and eighteen days after they first entered prison--they were cleared by a DNA test and a cop's confession at Cruz's third trial that he had supplied the original lie that convicted them in the first place.

Because they are so eager to make their reputations in murder trials, prosecutors will launch them even with very weak evidence, which is one reason they lose about 30 percent of capital trials, compared with about 15 percent of other felony trials. And some prosecutors will spend any amount of money and time rather than admit they are wrong. The premier example is the ordeal of Darby Tillis and Perry Cobb. They were tried five times--the most of any defendants in US history--for a Chicago murder. The five trials included three hung juries and a conviction--eventually reversed by the Illinois Supreme Court because of the conduct of the trial judge, who was later convicted of taking bribes. Finally, at their fifth trial, they were acquitted.

Before that, they had spent six years on death row.

Keeping the Public Stupid

Death rows and prison cemeteries are full of men and women who wouldn't be there if their trial juries had been aware of the alternative sentences offered by the state in which the murder was committed. Surveys have found that most people eligible for jury duty would be willing--indeed would prefer--to give first-degree murderers less than the death penalty if the substitute penalty were absolutely guaranteed to keep the killer behind bars a very long time or, if he is particularly dangerous, for the rest of his life.

The trouble is, many jury members have no faith that this will happen. Scare stories have convinced them the "system" is little better than a revolving door and that killers who aren't executed will be back on the street long before their prescribed sentence is up. A few years ago, a small army of academics known as the Capital Jury Project and funded by the National Science Foundation interviewed nearly a thousand jurors who had served in capital trials in eleven states. They found that most had done their jury service without having the foggiest notion of their states' penalty laws, which in fact offered quite a variety of penalty choices. Some of the interviews were done in states where the law specifically requires "lifers" to serve at least twenty-five to forty years before being eligible for parole, and where the worst killers can be sentenced to honest-to-god LWOP--life without parole.

Many prosecutors and tough-on-crime legislators have done their best to keep juries ignorant, for if they don't know the alternative sentences, they will more likely vote for death, just to be safe. Attorney J. Mark Lane, in a study of 280 Georgia death cases, found that during one-fourth of the sentencing deliberations, juries asked the judges what chances of early parole went with certain sentences. When they got no answer, most quickly voted for death. Here's Lane's description of one episode:

The jury first sent the judge two questions: "Can we give the sentence of life without chance of parole? If no, when will the defendant be eligible for parole?" The judge replied that he was "not permitted to answer either of these two questions." The jury, after deliberating further, reported that it had reached a unanimous verdict: "We recommend mercy or that defendant's punishment be life imprisonment with the stipulation that it be life imprisonment without parole."

The judge said he couldn't accept that sentence because it wasn't in Georgia's law. He ordered them to go back and try again. Exhausted from floundering around without guidance, the jury imposed the death penalty.

Of course, many murders are so awful that juries aren't satisfied with any term that would include a chance for parole. For these juries LWOP would be the only tempting alternative, and thirty-three of the thirty-eight capital-punishment states now offer it. Of the five holdouts, Texas is by far the most stubborn, and its opponents are not shy about their reasons. In Harris County (Houston), District Attorney John Holmes Jr. said, "When you start passing throw-away-the-key bills, you're effectively eliminating the death penalty." And that wouldn't be popular at all in his county. It is by far the most bountiful supplier of candidates for execution in Texas.

A Strange Investment for a Capitalist Country

What does the public get from this sorry charade? It gets the bill. Hayseeds and urbanites alike are taken to the cleaners. The Judicial Conference of the United States estimates that the defense cost alone (and since virtually all defendants are penniless, the taxpayer picks up the tab) is four times higher in death-penalty cases than in cases where death isn't sought. And prosecution costs are 67 percent higher than defense costs. The cost of running a Supreme Court in a big state is enormous, and the Supreme Courts in states like California and Texas will spend more than half their time sorting through death-row appeals. Then there are the construction costs of making death rows extra secure, salaries for special guards and the cost of special recreation areas, etc.

The New York Times recently interviewed officials in the twelve states that have no death penalty; all were delighted not to be bogged down in the expensive swamp. The press in other states reports cries of pain. The Sacramento Bee estimates that California's bill for processing death-penalty cases between 1977 and 1993 came to $1 billion--although only two people were executed during that time. The Dallas Morning News figures that sending a killer to death row costs an average of $2.3 million, or about three times the cost of imprisoning someone in a single cell at the highest security level for forty years (forty years is the stiffest sentence available in Texas, next to the death penalty). In Indiana, a capital case costs about $4 million--and that's just to get to the appellate stage. David Cook, a former death-penalty prosecutor, complained to the Indianapolis Star/News, "If you're gonna spend this type of money in a system where there isn't much resources to go around, I think that we have a reasonable right to expect that we're gaining something by doing this.... We don't gain anything by doing this."

Counties bear much, and sometimes all, the cost of these trials, and smaller counties would almost rather ignore a murderer than go broke trying to kill him. The district attorney in the Ogeechee Circuit in east Georgia said, sure, there were criminals in his district who deserved to die, but trying a death-penalty case "in a county of 8,000 people might bankrupt the county. How do you do it?" In Mississippi, small counties quarrel fiercely over which side of the county line the body was found on--neither wanting to take on the cost of the trial. In Washington State two counties were sucked so dry by murder trials that they had to lay off personnel and suspend plans for replacing broken equipment. It cost Suffolk County and New York State $2.3 million in 1999 to convict Robert Shulman of murder, which Newsday noted is twice what it would have cost the state to keep him in prison until he is 85. The Daily News got into the act by predicting that by the time Shulman is ultimately executed, his appeals and the trials and appeals of others processed in the meantime will have cost the state about $408 million.

Maybe that's an exaggeration, but whatever the cost, Professor James Acker, a death-penalty expert, stated the obvious: "The return on the dollar of these investments is really quite poor." And nowhere poorer than in Florida, where the Palm Beach Post estimated that the death penalty has cost the state $51 million a year above and beyond what it would have cost to punish all first-degree murderers with life in prison without parole. That averages out to $24 million for each of the forty-four executions in Florida since 1979.

The Long, Long Wait for Revenge

Again, the question: What's the profit from pumping so much money into this strange punishment? Deterrence? Since the 1970s, the South has carried out 80 percent of the executions, and its murderers are still the busiest in the nation. On May 25, 1979, guards at the Florida penitentiary dragged John Spenkelink, gagged and struggling, into the execution chamber, strapped him into the chair and threw the switch. Surely that made would-be murderers think twice, didn't it? No. In the three years before his execution, Florida averaged 904 murders annually; in the three years after, the number averaged 1,440--a 59 percent increase.

Better than statistics in this debate are the instincts of those who have spent their lives trying to control violence. The nation's police chiefs certainly don't seem to have much confidence in the death penalty as a deterrent. Responding to a 1995 Hart Research Poll, only 1 percent said expanding the death penalty would help reduce violent crime.

Revenge? Is that what you want for your money? Well, there are plenty of men and women on the nation's death rows who rightly provoke that desire: mass murderers, murderers who killed for fun, murderers who killed for hire, who raped and tortured women, who raped and tortured children. There is, of course, a wide range of savagery represented on death row. Some is relatively simple, like the Georgian who killed his lover by jamming a screwdriver into his ear and twisting it, then tried to get rid of the body by cutting it up and flushing it down the garbage disposal.

But you would be better off if you forgot about a-life-for-a-life revenge and began supporting the much cheaper and just as final LWOP, for the death penalty is the least efficient form of revenge. Since the United States cranked up "modern" capital punishment with new rules in 1976, there hasn't been a year in which the nation has managed to execute even 3 percent of its death-row inmates, and the average year saw the demise of fewer than 2 percent. Of the approximately 6,700 people sentenced to die between 1973 and 1999, only 598--fewer than one in eleven--were executed. And about four times as many were given new trials and lesser sentences or gained clemency. California saw its death row, the largest in the nation, grow from 350 to about 550 inmates between 1992 and 2000, while it executed only seven men; in the same period, state and federal courts overturned twenty-three of its death sentences.

Obviously, any spectator waiting around for revenge in a particular case may wait so long he will forget what he's waiting for; the average stay on death row before execution is about eleven years, and a residency of twenty years isn't unusual. When Texas executed Gary Graham amid much controversy recently, it got rid of a boarder who had been on death row eighteen years. Karla Faye Tucker, the first woman executed in Texas since the Civil War, had been there thirteen years. More to the point--and more to the embarrassment of the prosecutors and judges who sent them there--since the death penalty was reinstated, revenge-seekers have watched eighty-nine condemned men walk out the prison gates free, either because evidence was uncovered proving their innocence or because some appellate court decided they had received a trial that had no relationship to justice.

The Corruption of Justice

Such reversals are rather common, because some judges and prosecuting attorneys just aren't very smart and others (sometimes with the help of crooked law enforcement officers) are a crafty bunch who abuse and exploit the law for political purposes. Those groups together have helped turn the death penalty into a con game that is corruptly and stupidly administered. Two dramatic studies supporting that conclusion recently made headlines everywhere. This past June, researchers at Columbia University's Justice Project completed a statistical study of death-penalty appeals that passed through the nation's courts between 1973 and 1995. They found that 2,370 death sentences--seven out of ten handed down during those years--had been thrown out on appeal because of serious flaws in the trials: Perhaps the judge had given prejudicial instructions to the jury, or the prosecutor had suppressed evidence, or the cops had falsified evidence, or the defense attorney had been totally incompetent, or there had been some other equally unacceptable conduct. It was enough to make the authors of this monumental study conclude that the death penalty system is "wasteful and broken...collapsing under the weight of its own mistakes."

Right now the Columbia University group is trying to finish the job, plowing through the thousands of cases reviewed by hundreds of state and federal appellate judges since 1995. Its preliminary finding is that "the error-proneness and irrationality" shown in the original study "has not somehow evaporated in the succeeding four years...and may be getting worse."

The second major study was done by a crack team of reporters at the Chicago Tribune who probed the muddy underpinnings of justice in Illinois. They made the first comprehensive examination of all 285 death-penalty cases handled in that state since the penalty was restored twenty-two years ago. This was their general conclusion: "Capital punishment in Illinois is a system so riddled with faulty evidence, unscrupulous trial tactics and legal incompetence that justice has been forsaken." In thirty-three cases the defendant was sentenced to die at a trial where he had an attorney who was disbarred or suspended at some time in his career for incompetent or criminal actions. In forty-six cases the prosecutor's evidence relied heavily on a jailhouse snitch; in twenty cases the prosecutor's case depended on a crime lab's comparison of hairs--and both kinds of evidence are considered so unreliable that up-to-date courts treat them as bad jokes. And in thirty-five cases, a defendant sent to death row was black and the jury that condemned him was all white.

(The US Constitution forbids racial discrimination in jury selection, but prosecutors have ways of getting around the prohibition, and judges often ignore the violation. Because blacks--for historically good reasons--are known to be far less likely to support the death penalty, prosecutors go out of their way to keep them off capital juries. In Philadelphia, there was a secret school that taught prosecutors how to block blacks from juries.)

The Tribune noted that "forty percent of Illinois's death-penalty cases are characterized by at least one of the above elements. Sometimes, all of the elements appear in a single case. Dennis Williams, who is black, was sentenced to die by an all-white Cook County jury; prosecuted with evidence that included a jailhouse informant and hair comparison; and defended, none too well, by an attorney who was later disbarred."

Which brings up another major cost of capital cases. In several states, taxpayers have had to fork over multimillion-dollar settlements to wrongly convicted death-row inmates. Williams, mentioned above, got nearly $13 million for his eighteen years of wrongful imprisonment. Because there were so many errors by judges and so much misconduct by prosecutors and ineptitude by defense attorneys, the Illinois Supreme Court has vacated 49 percent of the death sentences and ordered new trials or new sentencing.

Hanging Judges

The good news is that the defective sentences would not have been thrown out if there hadn't been federal and state judges of some integrity--yes, they do exist--to catch the errors and force them to be corrected. Florida's Supreme Court, for example, found trial errors requiring retrial or resentencing in an astounding 83 percent of the first-time death-penalty appeals it reviewed in 1999.

But in several states and regions, such judges seem to be extremely rare. For a prime example, consider Virginia's state appellate courts and the federal Court of Appeals for the Fourth Circuit, which handles appeals from Virginia. They seem to have gone into business together as a kind of abattoir. Unlike other states and other federal circuits, they think virtually all capital trials have been fair and error-free and that there's no reason not to speed up the executions. Virginia has the lowest percentage of capital reversals in the country (nearly half that of the next lowest state, and less than one-fourth the national average).

Does this mean Virginia's trials are outstandingly fair and error-free? Or does it mean that the appellate judges are willingly blind to the errors because they like to keep the death-row production line humming? They certainly succeed at the latter: Virginia has an extremely high rate of execution, nearly double that of the next highest state and five times the national average.

The Fourth Circuit, a veritable rubber stamp for capital sentences, is recognized as being by far the most conservative court in the federal appellate system. It is a hotbed of right-wing Republicanism, the same kind that guides the Texas Court of Criminal Appeals, and it is largely because of the TCCA that Texas has executed two and a half times more people than even that hard-charging runner-up, Virginia.

Ten years ago the Texas panel had a few humane members, and they weren't timid about criticizing their colleagues' judgments. When the court refused to hear a capital case because an inept lawyer failed to file an appeal before the prescribed deadline, Judge Morris Overstreet denounced the decision as bordering on "barbarism because such action punishes the applicant for his lawyer's mistakes." Judge Overstreet is no longer on the court. Neither is Judge Charles Baird, who had the gall to suggest that his conservative colleagues shouldn't be so speedy in approving death for defendants who had been given worthless attorneys.

Tired of listening to malcontents like Baird and Overstreet, leaders of the state Republican Party launched a successful campaign to take over the court--in fact, all the courts in the state. It was a partisan rout. As the dean of one Texas law school put it, "If Bozo the Clown had been running as a Republican against any Democrat, he would have had a chance." Indeed, several bozos were elected. One of the newly elected members at the TCCA was Stephen Mansfield. In his campaign he lied about his birthplace, lied about his prior political experience, lied about his lawyering experience and failed to disclose that he had been fined for practicing law without a license in Florida. All this came out before the election, but 54 percent of the Texas voters backed him because he promised to be really, really tough on those liberal defense attorneys. (There's an aura of tackiness about this court, and Judge Mansfield showed he fit right in when he was arrested for scalping complimentary University of Texas football tickets that members of his court received.)

Chief Judge at the TCCA is Sharon Keller, best known for an appearance on Frontline in which she opposed freeing a man who had served ten years for rape even though a DNA test proved him innocent. Jeffrey Toobin had her in mind when he wrote in The New Yorker that "in Texas, at least, women judges have enforced the criminal law in general and the death penalty in particular with a greater ferocity than their male predecessors." The all-Republican court has become merciless in what the Texas Defender Service, which aids penniless murder defendants, accurately calls a "superficial, slipshod, politically motivated" review of death-penalty appeals. Between 1973 and 1995, a relatively humane era (by Texas standards), the TCCA reversed 35 percent of death sentences, putting it in the mainstream of appellate courts nationwide. But since 1995, with right-wingers totally in control, it has reversed only eight of 256 capital cases--at 3 percent, the lowest reversal rate in the country.

The TCCA is so eager to keep the juggernaut rolling that even when it makes mistakes so glaring it is forced to admit them, the court refuses to correct the mistakes. Some mistakes are so egregious that it's hard to believe they are accidental. On several occasions the court's opinion upholding a death sentence is at least partly based on trial record "excerpts" that simply were never in the record. The TCCA seems to have made them up for the occasion.

For Free, You Get a Drunk Lawyer

Virtually everyone accused of murder is penniless or close to it. Thanks to the Sixth Amendment to the Constitution, they must be given an attorney. But the constitutional guarantee says nothing about the quality of representation, which, except for the all-too-rare pro bono help from an established law firm, is generally dismal. The reason for the rarity of pro bono help is that even the most charitable firms don't relish spending many thousands of hours and dollars to handle the appeal of some scruffy nobody. A lawyer from Vinson & Elkins, one of Houston's most powerful law firms, spent five years and $2.5 million in billable time proving that Ricardo Aldape Guerra had been framed as a result of police intimidation of witnesses and did not belong on death row, where he had spent fourteen years. Lawyers from the mighty New York firm of Paul, Weiss, Rifkind, Wharton & Garrison have spent more than $1 million in pro bono hours trying to save mentally retarded Johnny Paul Penry, who has been on Texas's death row for twenty years. Help like that is the stuff of death-row dreams. Reality is that the legal help most prisoners get is taxpayer-financed on the cheap; compensation in some states hovers around $20 an hour. Considering the complexity of death law, the appointment of lawyers willing to work for those wages is (as someone has said) "like asking a chiropractor to do brain surgery."

There is considerable variety among the states in the quality of help penniless murder defendants are given, but since outgoing Texas Attorney General John Cornyn has said his state offers "super due process," let us focus on Texas justice. Of the state's 254 counties, only three have public defender programs. In the others, county judges pick the defense attorneys. They often reach into the bottom of the barrel and appoint hacks who are personal friends, political supporters and contributors, and, most of all, attorneys with a reputation for "moving" cases fast with little regard for the quality of defense they give. Texas's county judges have appointed lawyers known to be drunks or drug addicts or both. Some of these court-appointed hacks know absolutely nothing about capital jurisprudence. Several have become famous for sleeping through parts of trials. The most notorious sleeper was Joe Frank Cannon, who was popular with some Houston judges because, as he boasted, he could move a trial "like greased lightning." Ten of Cannon's twelve capital clients went to death row.

But even the best-qualified court-appointed defense attorneys face heavy odds. They go up against veteran prosecutors who are backed by a team of colleagues, aided by police, medical examiners and crime and ballistics labs. A court-appointed defender can't hope to defeat that army without at least the help of a second attorney and an investigator with a budget of several thousand bucks. Many Texas counties, being poor, do not appoint a second attorney, and they usually give the defense no more than $500 to hire an investigator.

For postconviction appeals, Texas indigents get lawyers appointed from a list approved by the Court of Criminal Appeals. Once it chose two of its former law clerks who had no experience in such matters to handle fourteen postconviction cases--a load that not even two really experienced lawyers could properly handle. The court has selected lawyers who don't know how to prepare postconviction petitions or when to file them--and don't try to find out. One defendant got a lawyer who previously prosecuted him in two cases, was known to have a cocaine problem and failed to file for a postconviction review on time. The Court of Criminal Appeals has never, in any case, removed an appointed counsel because of incompetence. When inmates realize they have been given a dunce or a druggie and ask for a new attorney, the court always turns them down without comment.

Stephen Bright, director of the Southern Center for Human Rights in Atlanta, says, "A person may be condemned to die in Texas in a process that has the integrity of a professional wrestling match."

And when these defendants are convicted, which they usually are, and they base their appeals on the conduct of their attorneys, the Texas Court of Criminal Appeals as often as not will rule against them, saying that the failure of the appointed attorneys to give anything remotely like a defense was "harmless error."

Consider the trial of Jesus Romero in San Antonio. After Romero was found guilty of murder, this was all that attorney Jon Wood offered the jury as a plea for mercy: "You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say." You won't be surprised to learn that Romero was found guilty. You may be surprised to learn that he was executed because the Court of Appeals for the Fifth Circuit said it also thought his attorney had given a perfectly fine defense. Well, that's capital punishment these days.

The Fifth Circuit was equally forgiving in the Texas trial of Ramon Mata. The defense attorney had teamed up with the prosecutor to make sure they had an all-white jury. Again, it was just "harmless error."

After Illinois's governor declared a moratorium on executions because DNA tests had found that some inmates on death row were innocent, George W. Bush was asked if it was possible Texas had executed any innocent people. Nah, he said, Texas always did things right. So the Chicago Tribune sent a team of reporters down there to look over the records of the 131 inmates who had been executed in Bush's reign up to that time. They found that nearly one-third of the losers had been given attorneys who had at one time or another been publicly sanctioned for misconduct.

The Rot Is Everywhere

Don't for a minute think that Texas is unique in offering that kind of sloppy justice. Assigning incompetent lawyers to help indigent defendants is as common as kudzu.

§ A few years ago, one-third of the twenty-six men on Kentucky's death row had lawyers who were eventually disbarred or had their licenses suspended.

§ In a Georgia capital case, an indigent black defendant was assigned as his attorney none other than James Venable, 83, a former Imperial Wizard of the Ku Klux Klan who was notorious for sleeping through trials.

§ In another Georgia capital case, this was the court-appointed lawyer's wrap-up argument for mercy: "You have got a little ole niggerman over there that doesn't weigh over 135 pounds. He is poor and he is broke. He's got an appointed lawyer.... He is ignorant. I will venture to say he has an IQ of not over 80." The defendant was sentenced to death. (Stephen Bright observed: "Had that lawyer done any investigation into the life and background of his client, he would have found that his client was not simply 'ignorant.' Instead, he was mentally retarded. For that reason, he had been rejected from military service. And he had been unable to function in school or at any job except the most repetitive and menial ones. His actual IQ was far from 80; it was 68. He could not do such basic things as make change or drive an automobile.... That could have influenced the jury for mercy.")

The Short Life of Reform

Fot all indigent defendants have incompetent lawyers. There are some dedicated defense lawyers who accept long hours, bad pay and very long odds as part of their calling. There just aren't enough of them. But for a time, not long ago, they got federal support from the Post-Conviction Defender Organizations (originally known as the Death Penalty Resource Centers). These came into being in 1988 because the federal appellate courts were drowning in emergency habeas corpus filings from death-row prisoners seeking stays of execution. Scads of the petitions were poorly drawn, because there weren't enough seasoned lawyers out there to help the petitioners. Inmates were being executed because they had nobody to help them file appeals on time. The states had no workable program for matching good lawyers with indigent prisoners. Civil rights groups like the NAACP and other nonprofit legal services tried to help but were falling far behind. Congress did nothing about it until these groups and the American Bar Association raised so much hell that Congress was forced to fund the Death Penalty Resource Centers.

There was already a nucleus of those eighteen-hour-day defense zealots, but they needed money to survive and expand. Now they had it. They recruited lawyers from major law firms, and if the recruits needed the special training that capital lawyering calls for, they got it. Sometimes Resource Center lawyers were directly involved in both the trials and the appeals. Their successes became the stuff of legend.

With their help, George Daniel, who had been on the execution list for six years, won a new trial and got off Alabama's death row. Attorneys from one of Atlanta's best law firms were recruited for Gary Nelson, and they freed him from death row after eleven years by proving that the prosecution's case was corrupt, top to bottom. One of their most dramatic victories was in saving Frederico Martinez-Macias. A nine-year veteran of death row, he was just two days from his scheduled execution when the Texas Resource Center recruited a Washington, DC, law firm and helped it prepare his appeal, which ended with Martinez-Macias walking free.

The Resource Centers were so successful that, of course, conservatives in Congress couldn't stand it. Neither could prosecutors, who hated getting whipped by these intruders. Republican Congressmen from South Carolina and Texas launched a crusade to withdraw funds and kill the centers. In 1995 they succeeded.

II: The Supreme Court's Dismaying Muddle

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved...I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.
--Justice Harry Blackmun, dissenting, Callins v. Collins, 1994

The primary source of this humongous, ongoing travesty of justice is the US Supreme Court. In the early 1970s, it had its best chance to rid the nation of the death-penalty headache, but it failed then, and it has been making things worse ever since. Many legal scholars would agree with Carol and Jordan Steiker, who wrote in the Harvard Law Review in 1995: "How and why did the Court create a body of law at once so messy and so meaningless?... The Supreme Court's chosen path of constitutional regulation of the death penalty has been a disaster, an enormous regulatory effort with almost no rationalizing effect."

The heyday of capital punishment in the United States was in the 1930s, when executions averaged 167 a year. In the 1940s, the average dropped to 129. The dramatic decline that began in the 1950s (with an average of seventy-two) was largely due to the civil rights movement, which raised hell about the disproportionate use of minority bodies for execution (55 percent of all executions; 90 percent of those for rape). Since most of the nation's executions were in the South, one didn't need a keen legal mind to see that racial bias had something to do with it. Because of the NAACP Legal Defense and Educational Fund's heroic onslaught of lawsuits challenging the constitutionality of the death penalty, the number of executions plummeted to forty-two in 1961 and down, down, finally, to two in 1967. Then a moratorium on executions took place while the states and the lower courts waited for the Supreme Court to decide what should be done next.

Traditionalists' Last Stand

The quiet that followed was broken in 1971 when the Supreme Court heard McGautha v. California. The decision in that case was very strange indeed, considering the 180-degree turnaround the Court would make the very next year, in Furman v. Georgia. The conflict between those two decisions, coming so close together, foretold the chaos to come.

In McGautha, lawyers for two men convicted of murder, one from California, the other from Ohio, argued that their trials were constitutionally intolerable because the juries were left with nothing but their conscience, intelligence and sense of fair play to guide them. They said the juries should have been given standards for measuring the wickedness of the crimes, and for delving into the character, the background and the intent of the defendants to determine if reasons for mercy could be found. Additionally, lawyers for the Ohio defendant complained that their man hadn't got a fair shake because his jury had decided on guilt and punishment at the same time, instead of separating the decisions into two processes, as had been done for the California defendant.

The Supreme Court's 5-to-4 opinion, written by Justice John Harlan, an Eisenhower appointee, came down to this: The traditional system of leaving life-and-death decisions to a jury's unguided discretion was working OK and did not offend the Constitution. Common sense and fair play were enough. People who wanted to write specific "guiding standards" for weighing degrees of guilt and innocence were asking the impossible, because putting such guidance "in language which can be fairly understood and applied" would be a task "beyond present human ability."

Harlan's skepticism was prophetic.

As for the Ohio defendant's other complaint--that he didn't get a fair shake because the guilt phase and the penalty phase of the trial were not separated--that gave Harlan a chance to thumb his nose at those eggheads at the American Law Institute and the National Commission on Reform of Federal Criminal Law who had recommended the separation. Tough luck, said Harlan, for the Constitution "does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology."

t was the old boy's last big chance to strike a blow for tradition. Shortly thereafter, Harlan retired and died. If he had lived even another year he would have been shocked to see the dazzling speed with which the Supreme Court can change its mind. It happened with Furman v. Georgia. The nine separate opinions totaled 50,000 words, the most voluminous dialogue in Court history. Stanford University law professor Robert Weisberg likened it to "a badly orchestrated opera, with nine characters taking turns to offer their own arias."

The case dealt with appeals from three black men who had been sentenced to death, one for murder, the other two for raping white women. William Furman was the murderer. At trial he gave this description of how he accidentally shot his white victim through a door: "They got me charged with murder and I admit, I admit going to these folks' home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn't intend to kill nobody. I didn't know they was behind the door. The gun went off and I didn't know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That's all to it." As a matter of fact, the Georgia Supreme Court accepted Furman's explanation, but it nevertheless upheld the death sentence. (Let us pause to point out the obvious: This was, as Furman's attorney said, "a regular garden-variety burglary murder." A white defendant would have got maybe twenty years.)

In Furman, as in McGautha, the Supreme Court was asked if the death sentence was "cruel and unusual." This time, it said yes--but it was a weak yes. Only two of the 5-to-4 majority, William Brennan and Thurgood Marshall, thought capital punishment itself cruel and unusual, but all five of the majority said the way the penalty was applied was unconstitutional.

What galled them was that judges, prosecutors and juries were administering the penalty so randomly, so capriciously, that it was like "being struck by lightning," said Justice Potter Stewart. Justice Byron White--who wanted more, not fewer executions--complained that after being exposed to "hundreds and hundreds of federal and state criminal cases" that could have resulted in the death penalty and seeing only a handful of defendants selected for execution, he considered the system totally irrational and just based on luck. Justice Brennan also emphasized the element of luck: "When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year," even though thousands of murders are committed annually, "it smacks of little more than a lottery system."

The Supreme Court's decision was good news for the 600 or so residents of the nation's death rows, including such notables as Robert Kennedy's assassin, Sirhan Sirhan, whose sentences were invalidated. Some were freed; most were resentenced to life terms, with a chance for parole. (The man who gave his name to the case, William Furman, was paroled in 1984, worked on construction jobs and stayed out of trouble. His voting rights were restored in 1988.)

The records of the 600 show just how capriciously the death program had been operating. Two-thirds of the condemned were on Southern death rows, the most by far in Florida and Texas, with Georgia and Louisiana close behind. All of the eighty-one who had been condemned for rape were in the South, nearly one-third of them in Florida, with Georgia and Louisiana tied for second place. Fifty-five percent of the capital offenders were black, 43 percent white, 1 percent Hispanic. Records also showed that juries had rarely allowed the men's backgrounds to have any mitigating effect on their sentences. True, most had previously committed crimes, but these were usually property crimes. Nearly three-fourths had never been convicted for a violent crime. Only 39 percent had ever before been in an adult prison.

In Furman, the Court was given the best chance it had ever had, and probably the best chance it would ever have in the next hundred years (considering how seldom liberal judges are appointed), to escape from the death-penalty dilemma. Why, oh why, did they stop short? Why did they say merely that the death penalty was unconstitutional because it hadn't been applied fairly? Why not say it was unconstitutional because it could never be applied fairly, and was therefore cruel and unusual?

Instead, the Court sent the state legislators back to the drawing board to try again.

The Blind Leading the Blind

For the states whose lawmakers believed in capital punishment, which was most of them, Furman was an excruciating turn of events. They were left, as Robert Weisberg put it, with "an emotional and confusing ensemble of exhortations...to solve a problem that the Court could barely identify." They were expected to come up with a system that would give at least the symbolic appearance of objectivity and predictability. Fumbling along, three dozen states eventually wrote "reformed" death-penalty statutes. Ironically, most of the new laws did exactly what the defense attorneys in the McGautha case had asked for and which the Court's majority at that time had scorned.

In most states, the new laws called for splitting the capital punishment ritual into two parts. First the jury would decide whether the defendant was guilty. If it judged him guilty, then the jury would reconvene to decide whether he should pay for his crime by being executed or by serving some portion of his life in prison. Most, but not all, of the new statutes required that the death-penalty phase be guided by a checklist of aggravating and mitigating circumstances surrounding the murder: What was the killer's motivation? What was his criminal record? How brutal, how indefensible was the crime? Who were his victims? Did he deserve sympathy because of his age, because of a wretched home life, because he was an addict, because of his mental state at the time of the murder, etc.? The checklist was clearly intended to keep the jury's mind narrowly focused, to keep it from wandering all over the psychic landscape as it allegedly had in the pre-Furman days. On paper these checklists had the refined air of scientific formulas. In fact, they were anything but scientific, and they would, as the result of other Supreme Court rulings, become about as well-ordered as the contents of a typical wastebasket.

Florida, which had more people on death row than any other state when the old law was thrown out, apparently felt naked without one, and it was the first to write a new law, completing it within six months. But other Deep South states were close behind. Some were so eager to start executing murderers again that they began filling up their death rows even before the new statutes had been approved by the Supreme Court. But they didn't have to wait long.

Populism Gone Berserk

In Furman, the majority had said the manner of deciding who would be sentenced to death row was unconstitutional, but they left hanging the question of whether the punishment itself was "cruel and unusual" and hence unconstitutional. In 1976 that was answered when the Court approved the new death penalty statutes in Georgia, Texas and Florida.

The lead opinion in Gregg v. Georgia was written by Justice Stewart. In Furman, he had complained that death was being dealt out with all the randomness of "being struck by lightning." Now, speaking for the Court's majority, he came up with an absolutely bizarre rationalization for concluding that the new statutes would result in judgments as dependable as a light switch. Why would this be? Because they were the voice of the local people--"the community's belief," as expressed by the legislatures. What! He thought the US Supreme Court should bow to the biases of local and state pols in constitutional matters of life and death?

If the Georgia legislature (or the Texas legislature, or any other legislature) said capital punishment was needed, then who was the Court to say it was wrong? The Court, Stewart wrote, had a high regard for "federalism" (i.e., states' rights) and "the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility." These questions should be left to the legislatures to evaluate "in terms of their own local conditions and with a flexibility of approach that is not available to the courts."

This was indeed a strange, stunning surrender, coming as it did from a Supreme Court that over the preceding twenty-two years (beginning with the Brown v. Board of Education ruling in 1954), had been knocking the unholy crap out of "community belief" in segregation in half a dozen major civil rights cases. Like those civil rights cases, of course, most death-penalty cases had emerged from the South.

Florida's Folly, and Spenkelink

Not surprisingly, the execution that haunted the new era was in the South's most enthusiastic sentencer of the damned, Florida. As previously mentioned, the victim was John Spenkelink. On May 25, 1979, he became the first person in twelve years to be executed in the United States against his will. (Gary Gilmore had invited Nevada to kill him, and it complied in 1977.)

The background and foreground of Spenkelink's case dramatically demonstrated the way race and social status would continue to dominate the death penalty despite the "reforms" of Furman. It also illustrated the confusion that would forever arise from the new guiding standards.

The death penalty is supposed to be reserved for the "worst of the worst" crimes. In an effort to guarantee this, Florida listed this catchall category--"the capital felony was especially heinous, atrocious and cruel"--among the aggravating circumstances that a jury should consider when deciding on the penalty. The Florida Supreme Court said it felt "the meaning of such terms is a matter of common knowledge" and "an ordinary man would not have to guess at what is intended." However, apparently fearing that trial judges and lawyers might stumble where ordinary men would not, the court supplied another bushel of modifiers, explaining, for example, that "heinous" means "extremely wicked and shockingly evil" and that "atrocious" means "outrageously wicked and vile."

Well, OK. But watching the Florida high court itself interpret these words was another matter, and quite enough to leave the ordinary man scratching his head. For instance, Thomas Halliwell, a former Green Beret, became so enraged at his lover's husband that he shattered the man's skull with a steel bar and then used a machete, hacksaw and fishing knife to cut up the body for storage in a garbage can and footlocker. The trial jury said that was indeed a heinous, atrocious and cruel crime, but the Florida Supreme Court said it was not, because the mutilation had occurred "many hours" after the crime.

Well, if beating somebody to death with a nineteen-inch steel bar wasn't especially heinous, how about beating somebody to death with a roofing hatchet? How about mortally wounding somebody with a knife and leaving him to die painfully over a long period? How about tying up three people and shooting them in the head? When convictions raising these questions came before the court, the answer in each case was no, not "especially." And in other cases that were no bloodier or even far less bloody, the court ruled in the opposite direction.

One such case involved Spenkelink, a 24-year-old former convict and drifter. He had picked up a hitchhiker named Joseph Szymankiewicz, another former convict, in the Midwest, and together they drove to Florida. Along the way, Szymankiewicz, who was larger and stronger, forced Spenkelink to have sexual relations with him and bullied him into playing Russian roulette. When they reached Tallahassee, Florida, Spenkelink discovered that his abuser had also stolen his money. They fought, and Spenkelink shot Szymankiewicz to death.

That was on February 4, 1973. Shortly thereafter, a Tallahassee jury convicted Spenkelink of first-degree murder, finding the crime especially heinous, and recommended the death penalty. The trial judge (who in Florida is empowered to overturn a jury's verdict) agreed, and so did the Florida Supreme Court. This was just an ordinary skid-row killing, one trashy nobody killing another trashy nobody in an ordinary fight, after considerable provocation and with considerable justification. If the rhubarb had taken place in Miami, at the other end of the state, where homicides are as common as cumulus clouds and attract little more attention, Spenkelink would probably have drawn ten years in the penitentiary and four inches on page 12 of the Miami Herald.

But as Chief Justice Warren Burger acknowledged in his Furman dissent, geography does matter: "There are doubtless prisoners on death row who would not be there had they been tried before a different jury or in a different State. In this sense, their fate has been controlled by a fortuitous circumstance." Burger was using fortuitous by its first definition, "happening by chance"--the kind of execution the US Supreme Court was supposedly trying to get away from.

But the Court showed no sympathy for Spenkelink's "fortuitous circumstance" of being tried in Tallahassee, Florida's capital, an ingrown small town near the border of Alabama and Georgia whose recent history had been marred by acts of racial intolerance. It was a place where--as Justice Richard Ervin of the Florida Supreme Court noted in his passionate argument against the execution--names like Spenkelink and Szymankiewicz sound "foreign and strange," and where, because the condemned prisoner had no family roots or business connections, "all the ingredients were present for the exercise of invidious parochial discrimination.... The result here is an old story, often repeated in this jurisdiction where the subconscious prejudices and local mores outweigh humane, civilized understanding when certain segments of the population are up for sentencing for murder."

In short, Justice Ervin was saying in a nice way that Spenkelink had been judged at his trial as the equivalent of a white nigger (a word still current in north Florida in those days).

Indeed, many believed it was his whiteness that probably doomed him to be the first to die. On the same day that Governor Bob Graham signed Spenkelink's warrant, he also signed one for Willie Jasper Darden, who, one might fairly argue, had committed a much more heinous crime than Spenkelink. A career criminal, Darden had shot a furniture owner and while he lay dying tried to force the man's wife into a sex act. When a 16-year-old boy saw the murdered man lying in the doorway and rushed up to help, Darden shot him in the mouth, throat and back.

But Darden was black, and Florida was especially sensitive on this point. Under the old death penalty it had executed twice as many blacks as whites, and twice as many blacks as whites were waiting on its death row to be executed when Furman had given everyone a reprieve. So Spenkelink drew the short straw. It was racism, but this time in reverse. (Willie Jasper Darden, by the way, would not be executed until 1988.)

The Court Begins to See That It Screwed Up

With Spenkelink's execution, the death-penalty industry started off at the bottom of a pit, and the more it clawed at the sides trying to get out, the more foolish it looked. The Court seemed to realize it had gotten itself mired in something too complex for mortal men and women--even for those who wore black robes and looked solemn--and began showing signs of panic. It had hoped that with the formalized checklist of aggravating and mitigating circumstances, the states could handle this on their own. The last thing the Court wanted to do was micromanage things. But that's what happened.

Sandra Lockett, 21, was the getaway driver for the robbery of an Ohio pawnshop. Murder was not supposed to be in the plan, but one of her accomplices killed the pawnshop owner anyway. She faced the death penalty as an accessory. It was her bad luck that the crime was committed right when the Ohio legislature was writing its death-penalty statute. It had originally said that many things could be considered to mitigate the offense. But after the pawnshop shooting, the legislature cut the mitigating factors to three--none of which applied to Lockett. She was sentenced to die.

Coming to her rescue, the Supreme Court ruled in Lockett v. Ohio (1978) that no state statute could limit the mitigating circumstance and that the jury must be allowed to consider anything the defendant thinks might invite mercy. A humane gesture, yes. But look what it did to the vaunted "specificity" of the mitigation list that was supposed to be the key to avoiding arbitrariness. Look what it did to the supposed cure-all, "guided discretion." Now, mitigation was wide open. If the same thing happened to the aggravation side of the penalty trial, well, what would be left of the Furman reforms? The answer to that came with Barclay v. Florida in 1983.

Unguided Discretion Is Back

As a member of the Black Liberation Army, Elwood Barclay had helped murder a white youth in a naïve attempt to start a race war. Although his trial was in Jacksonville, a city with a racist past, the jury kept its cool and voted seven to five to give Barclay a life sentence.

But there was a hitch. In writing their death-penalty statutes to satisfy Furman, four states, including Florida, had given judges the power to override the jury. The jury's decision is merely advisory; the judge may rule otherwise. For Barclay, Judge R. Hudson Olliff ruled otherwise. This was the fourth time Olliff had overruled juries that voted for life. No matter by what margin the jury voted for mercy--and in one case it was voted by ten to two--Judge Olliff was unswayed. Unlike the juries, he did not find a single mitigating factor in the lives of these four men. But in Barclay's case, he went dramatically beyond merely overruling the jury. Judge Olliff listed several "statutory" aggravating factors that in fact did not exist--and then threw in a very special one of his own creation: Barclay, the judge said, deserved death because he had preached hatred of white people. That was definitely not statutory.

Florida law did not permit any changes in its statutory aggravating circumstances. Surely the appellate courts wouldn't let Olliff get by with messing around like that. When the case reached the Supreme Court, several Justices, even those among the majority (who approved of Barclay's death sentence), sounded amazed that the sentence could have been upheld by the Florida Supreme Court. But never mind. "Mere errors of state law," said Justice William Rehnquist, "are not the concern of this Court."

With the Barclay decision, one critic said, the Court was telling state Supreme Courts "that they could uphold death sentences even where the penalty trial seemed clearly to violate federal or state law." With the Court now willing to accept inflated and mangled aggravating statutes--coming on top of the Lockett expansion of mitigating statutes--where did that leave the penalty trial? It had become a malleable legal toy, like Silly Putty, for the courts to play with.

Further evidence that "guided discretion" was dead came when the Supreme Court ruled that it was perfectly constitutional for a state to allow a trial judge to reverse a jury's recommendation of life. Whoa! The whole purpose of Furman and Gregg had been to get away from the "unguided discretion" of juries. Was the unguided discretion of a judge, overruling the guided discretion of a jury, any better?

In any event, the decision hardly raised the quality of mercy in the judicial system. Surveys have found that in the four states where judges have the power to override juries, they almost always use it to change the verdict to death. In Alabama, the ratio is ten to one.

The Last Gasp of Death-Penalty Reform

y the early 1980s, many legal scholars were saying that the Supreme Court had simply given up trying to keep any part of the Furman and Gregg reforms alive. Law journals were beginning to fill up with essays about what Robert Weisberg called "the deregulation of death." With the aggravation and mitigation rules in limbo, only proportionality remained of the post-1976 reforms, and it was about to die, too.

In its Gregg v. Georgia decision--approving models for the new death-penalty statutes--the Court had gone out of its way to urge other states to adopt the "proportionality" part of Georgia's statute. It required the state Supreme Court to ask two commonsense questions: In this particular case, is death an excessive punishment or is it proportional to the offense? When compared with factually similar cases, was the death sentence excessive in this case? One would assume that this kind of weighing and comparing is so basic to justice that the states wouldn't have to be goaded into doing it. In any event, to please the Supreme Court, most states had written proportionality requirements into their capital statutes.

But by the early 1980s the backlog of prisoners awaiting execution had become such a mob (1,209 in 1983) that state appellate courts, most of which had never been keen on proportionality anyway, began complaining that they just couldn't handle it, particularly the part about comparing one case with others that were similar--a process that is extremely time-consuming but that is the very heart of capital justice. So in 1984 (Pulley v. Harris) the Supreme Court said, OK, just forget it--proportionality isn't a constitutional requirement. After that, most states put proportionality aside and did forget it. Georgia's "model" proportionality statute has in the past twenty-four years been used only twice to overturn convictions.

Rehnquist-izing Justice

One thing became quite clear as the 1980s rolled along: The Court was getting meaner, as the ranks of its hard-liners got bigger. In 1953, when William Rehnquist was a clerk at the Supreme Court and Julius and Ethel Rosenberg were about to be electrocuted at Sing Sing, he wrote a memo saying, "It is too bad that drawing and quartering has been abolished." When he grew to Justicehood, perhaps he was no longer so bloodthirsty, but he was not shy about saying the death industry's execution line was far too slow. His impatience was shared by Justices Byron White and Lewis Powell. In 1981 Rehnquist gained another ally in Sandra Day O'Connor, and in 1986 he could celebrate not only being promoted to Chief Justice (over great protests from Senate liberals) but also being joined on the bench by Antonin Scalia, that philosophical heir of Torquemada.

Clearly, the Court very much wanted to make life as difficult as possible for defendants. Preferably, to shut them out.

For instance, as we have seen over and over, the most authentic complaint that can be made by most condemned men is that they were given an incompetent defense attorney and therefore did not receive a constitutionally guaranteed fair trial. But the Court was tired of hearing that complaint, and in 1984 (Strickland v. Washington), it said the complaint would no longer be considered grounds for review unless the defendant's lawyer did such a lousy job that there was a "reasonable" likelihood that the lawyer's mistakes brought about the death sentence.

Well, specifically, just how bad could a trial attorney be and still not be considered "ineffective"? What if the lawyer slept through the trial? That is accepted as reasonably effective assistance. What if the attorney made no effort to bring in witnesses who could prove the defendant's innocence--as happened to Gary Graham--at the guilt stage of trial? That's OK, even though it's clearly malpractice. What if he didn't present any mitigating evidence--none at all--at the sentencing phase? That's OK too (Burger v. Kemp, 1987). In fact, since 1984 not one appeal based on ineffective assistance has been granted by the Supreme Court.

Other actions have almost shut the door on habeas corpus, which used to be a generously available way to cut through the bureaucratic bullshit and get to a hearing in federal court. Now, even if you come with a wagonload of evidence of your complete innocence, there are Congressional dictums and Supreme Court rulings that can be used to turn you away.

From Congress, with Clinton's blessing, came the Antiterrorism and Effective Death Penalty Act of 1996. This act, for the first time in history, sets a one-year deadline for filing a federal habeas corpus petition after the defendant has waded through the state appellate system. Furthermore, a federal court will no longer be allowed to review the fairness of a defendant's trial; instead, it will decide only whether the state court "unreasonably" applied federal law in denying the defendant's appeal. Federal courts, in short, are a rubber stamp to state actions in capital cases. Naturally, the Supreme Court has embraced the AEDPA's restrictions.

Three years earlier, the Rehnquist Court had already started slamming the door. In the infamous Texas case Herrera v. Collins, it declared that if a defendant has evidence showing his innocence, he has no right to a federal hearing unless he presented the evidence before the state's statutory cutoff date (in Texas, that's thirty days after the trial), unless the defendant presents a "truly persuasive show by clear and convincing evidence... that no reasonable juror would have found the defendant eligible for the death penalty."

Most legal scholars, reading between the lines, summarize Herrera as meaning it is not unconstitutional to execute an innocent man.

The practical effect of Herrera and the AEDPA is seen in the execution of Gary Graham. He was convicted and sentenced to death for fatally shooting a man in a Houston grocery-store parking lot in 1981. He was convicted almost solely on the testimony of a woman who said she saw Graham that night, but only fleetingly, through the windshield of her parked car. Graham's trial attorney conducted virtually no investigation and put on no witness during the guilt phase of the trial.

In 1993, however, Graham got help from some real attorneys, who found that police lab tests showed that the gun taken from Graham on the night of the murder was not the weapon that fired the fatal bullet. The new attorneys interviewed two employees of the store who had seen the murderer and were certain it wasn't Graham. Several of the original jurors came forward to state that they would not have convicted him if they had heard the testimony from the other eyewitnesses.

Too late. Graham's new evidence of innocence was offered after the mandatory cut-off date. He was executed this past June 22. Herrera and the AEDPA killed him.

In the Herrera decision, Chief Justice Rehnquist stated, perhaps in jest, that even if an innocent defendant could get no help from the courts, he could "file a request for executive clemency." Graham, as everyone knows, was dealing with a governor who did not believe in clemency. But, for that matter, few governors do.

The Young and Retarded Are Fair Game

Along the way the Rehnquist Court made such notable contributions to the uplift of society as ruling that the Constitution approved the execution of the mentally retarded and the execution of murderous 16-year-olds.

Admittedly, the mental defective who brought about one of those rulings, Johnny Paul Penry, is an exceedingly brutal guy. On the morning of October 25, 1979, he entered the home of Pamela Carpenter in Livingston, Texas, and beat her, stabbed her with scissors and raped her. She died a few hours later. He was on parole when he did it, having recently served time for a previous rape. By the death-penalty standards of any state, that crime would clearly have made any normal person eligible. But is capital punishment really meant for someone who has had organic brain damage from birth, has an IQ of between 50 and 63, is rated by clinical psychologists as having the mental age of a 6-and-a-half-year-old child and has been unable to finish the first grade?

In 1989, the Supreme Court said yes, it was constitutional (Penry v. Lynaugh).

Raising this issue on appeal for the penniless defendant was a goodhearted but over-the-hill lawyer. His performance in presenting his plea to the US Supreme Court got this review from Alan Dershowitz:

To say the least, his presentation was a disaster. The attorney spoke haltingly, and his words were difficult to understand. He seemed not to understand some of the justices' questions. When he did, he frequently gave the wrong answers. He couldn't find needed references. He became so bogged down in technical detail that Sandra Day O'Connor had to remind him, with only three minutes left in his argument time, that he had not addressed the main issues--whether it was constitutional to execute a mentally retarded prisoner.

Needless to say, the Court decided that Penry's death sentence was perfectly constitutional.

This was a rare instance of bad luck creating good luck. The deplorable defense Penry received got national attention and, as mentioned earlier, prompted one of New York's best law firms to come to his rescue. Spending hundreds of hours of pro bono time on his behalf, it has kept Penry's case alive, and Penry alive, too.

Actually, some states hadn't been holding off until they heard from the Court. They had been executing murderers with IQs in the 50s and 60s since 1984, and they still are. Some experts in mental retardation count thirty-four executions in this group so far.

As for teenagers, in 1988 the Court said Oklahoma couldn't execute someone who was under 16 at the time of the crime, but it was OK if Kentucky wanted to kill someone who was at least 16. But virtually all states have refused to even consider going below 17. Sixteen death rows now hold eighty men, a third of them in Texas, who were juveniles when they murdered. Since 1976, seventeen men have been executed for crimes committed when they were juveniles.

Anyone who has been keeping score on death penalties will not be surprised that most of these mental defectives and teenagers have dark skin.

Racism Wins Again

hat brings us to what surely is one of the most indefensible judgments relating to race in the Court's history; no, not as vile as the "separate but equal" of Plessy v. Ferguson, but it spoke to the same junkyard justice that whites had historically reserved for blacks. The case was McCleskey v. Kemp, a Georgia case decided in 1987. If the Supreme Court never again within our lifetime takes up the question of cruel and unusual punishment, we can at least say that McCleskey closed that drama in a duplicitous style perfectly befitting the character of the Court.

Aside from the fact that McCleskey, a black man, was sentenced to die for killing a white person, the details of the crime and trial are not worth mentioning. All that really matters are the statistics compiled by law professor David Baldus, statistician George Woodworth and attorney Charles Pulaski Jr. for McCleskey's appeal, and the response of the Supreme Court's majority.

The Baldus study has been called "the most elaborate attempt ever made to show the disproportionately racial impact of any public policy." Examining more than 2,000 murder cases that took place in Georgia in the 1970s, it shows that people charged with killing whites were 4.3 times more likely to get a death sentence than those who killed blacks. Obviously, prosecutors and juries in Georgia didn't put a very high value on black lives. The death penalty was handed down in 22 percent of cases involving black defendants and white victims but in only 1 percent involving black defendants and black victims. The basis for McCleskey's appeal was that he was being discriminated against because of his race and because of the race of his victim, in violation of the Fourteenth Amendment, which promised equal justice. He asked that his death sentence be overturned.

Justice Powell, who had been a corporate lawyer for forty years in Richmond before being appointed to the Court by Nixon in 1971, wrote the lead opinion, joined by those other four pallbearers, Chief Justice Rehnquist and Justices White, O'Connor and Scalia. The opinion boiled down to this: (1) Just because blacks as a group are discriminated against doesn't mean that McCleskey can prove he was personally discriminated against. (2) The Baldus study may indicate "a discrepancy that appears to correlate with race," but "apparent disparities in sentencing are an inevitable part of our criminal justice system." Nobody's perfect. (3) Then Powell really got silly. If we let these blacks get by with claiming they were picked on because of their color, he said, the next thing you know, defense lawyers may start arguing that jury decision-making was influenced by such arbitrary variables as "the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim."

Because the Supreme Court ruled stupidly in McCleskey, the nation's old race problem is now joined by a new one. Up to now, the debate has been over whether race dictates convictions in state murder trials. But the federal government has death-penalty statutes too, and although it hasn't executed anyone since John Kennedy was President, that seems about to change. Juan Raul Garza is scheduled to die next year. President Clinton put it off for his successor to handle because the case has brought international criticism. Garza is a migrant Mexican farmworker who became a big-time drug dealer, smuggling tons of marijuana from Mexico and, in the process, murdering three men in Texas. His lawyers don't claim he was innocent of that crime. They claim that the death penalty is unfairly applied by racially biased federal prosecutors. Garza is one of twenty men on federal death row. Sixteen are minority defendants (most are African-American). Gregory Wiercioch, a lawyer with the Texas Defender Service, wants to know why federal prosecutors asked for the death penalty for Garza but not for gringo defendants in a dozen cases like his--multiple drug-related murders. If the McCleskey decision had gone the other way, this kind of sordid pigment-counting would have been avoided.

If the McCleskey decision depresses you, let your depression be modified just a little by the fact that after its author, Justice Powell, retired, his biographer asked him if there were any votes he had made while on the Court that he would now change. Yes, he said: He would change McCleskey. He added, "I would [now] vote the other way on any capital case." He also admitted that at the time he wrote the opinion for McCleskey, he knew precious little about statistics. Ah, what might have been! If Powell had only had his change of heart before McCleskey, which, like most of the major death-penalty cases, was decided by one vote, 5 to 4, that case just might have sent such strong shock waves through the legal system that it would have wiped out capital punishment.

Another notable change of heart occurred, this one for Justice Blackmun. For years, though he said he was offended by the death penalty, he had voted to uphold it without blanching. Indeed, before reaching the Supreme Court, he even wrote an appellate court opinion upholding the death penalty for rape. But before he left the Court he was sick of all that. Better too late than never, perhaps, but the folks on death row probably don't see much difference between the two.

So what has the Supreme Court left us with? Hugo Adam Bedeau, one of the best scholars of this grim history, says, "We now have the most complex and cumbersome system for administering the death penalty the world has ever seen; it is neither fair nor efficient. Few like it, and the more familiarity one has with it, the less one finds to like about it."

Ironically, during the years when the Supreme Court was frantically trying to hold the jerry-built death penalty together, the nations we are most closely linked to--including Canada, Germany, France, Italy and Britain--were abolishing it.

Now, except for places like China, Iraq and Iran, we have it all to ourselves. But isn't that appropriate for the world's only superpower?