Jay Johansen
Advocates of capital punishment routinely argue that statistics prove that it deters crime. Opponents of capital punishment just as routinely argue that statistics prove that it does not.
I suppose a naive person might find this disagreement puzzling. Even if we cannot agree on moral questions, surely we could at least agree on basic facts. I mean, it would be understandable if an anti-capital punishment person said that, yes, it does deter crime, but it is still wrong because it is cruel and barbaric; or if a pro-capital punishment person said, okay, it doesn't deter crime any more than life imprisonment or some other punishment, but it is still right because it is just. But can't we at least agree on the underlying facts?
Eric Freedman
On September 1, 1995, New York rejoined the ranks of states imposing capital punishment. Although the first death sentence has yet to be imposed, an overwhelming factual record from around the country makes the consequence of this action easily predictable: New Yorkers will get less crime control than they had before.
Anyone whose public policy goals are to provide a criminal justice system that delivers swift, accurate, and evenhanded results--and to reduce the number of crimes that actually threaten most people in their daily lives--should be a death penalty opponent. The reason is simple: The death penalty not only is useless in itself, but counterproductive to achieving those goals. It wastes enormous resources--fiscal and moral--on a tiny handful of cases, to the detriment of measures that might have a significant impact in improving public safety.
Ernst Van Den Haag
The case of Timothy McVeigh1 reminds us that the endless dispute about the death penalty is mainly religious in origin, even if many of the arguments employed are secular. The religious belief is that only God can legitimately end a human life; no crime can justify the death penalty for anyone, regardless of how great and certain his guilt is, or how powerful a deterrent his execution would be. Theologians disagree on the death penalty--it is warranted by Biblical passages and was traditionally favored by churches--but it is currently opposed by a majority of religious leaders.
The secular objections to the death penalty hold that its rational purposes, such as deterrence, should be achieved by alternative means, since we can never be entirely certain that all those convicted of capital crimes are actually guilty. The possibility--in the long run, the likelihood--that some convicts are not guilty is currently the most persuasive objection to capital punishment.
Mary Cooper ( CQ Researcher)
It has been more than three years since Rolando Cruz was cleared of the charges that landed him on death row, but there's still bitterness in his voice. “I did 12 years, three months and three days,” he told a recent conference on capital punishment. “They did kill me. I am who I am now because this is who they made.” [1]
Cruz and another man, Alejandro Hernandez, were sentenced to death for the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville, Ill. It was the kind of high-profile crime that prompts communities to demand quick action by law enforcement officers. DuPage County authorities complied by charging Cruz and Hernandez with Jeanine's murder.
Both men were tried, convicted and sentenced to death in 1985. Their convictions were based largely on the testimony of jailhouse informants and a deputy sheriff who said Cruz's description of a dream included details about the murder that only the killer would have known.
In 1995, after more than 10 years on death row, Cruz and Hernandez were released from prison after DNA testing proved that another man had raped Jeanine. At the time of the murder, Brian Dugan, a repeat sex offender and confessed murderer, had told authorities that he alone had committed the crime -- a fact that the Cruz and Hernandez juries weren't told. Three prosecutors and four law enforcement officers have since been charged with obstruction of justice for concealing evidence that would have exonerated the men a decade earlier. [2]
The Cruz and Hernandez cases may be dramatic, but they're hardly unique. Five hundred people have been executed in the United States since the Supreme Court reinstated the death penalty in 1976. Over that same period, 75 condemned inmates have been released after evidence showed they had been wrongfully convicted. That equates to roughly one exoneration for every seven executions.
Kenneth Jost (CQ Researcher)
Robin Lovitt says he didn't do it. He says Clayton Dicks was already lying mortally wounded on the floor of the Arlington, Va., pool hall when he came out of the restroom in the early morning hours of Nov. 18, 1998.
The jury in Lovitt's capital murder trial in September 1999 decided instead to believe a witness who testified he was “80 percent” certain he saw Lovitt stab Dicks and a jailhouse informant who said Lovitt later confessed to the crime while in custody.
Lovitt was sentenced to death, and his conviction and sentence upheld on appeal in the state courts. But court-appointed lawyers handling his federal habeas corpus case now say the state has made it impossible for Lovitt to prove his innocence by throwing away the physical evidence introduced at trial.
The evidence that a deputy court clerk discarded — ostensibly to save space in a crowded storage room — included a bloody pair of scissors that prosecutors depicted as the murder weapon. Lovitt's legal team, headed on a pro bono basis by former Whitewater special prosecutor Kenneth Starr, says the clerk's action prevents them from arranging for sophisticated DNA testing that could refute the prosecution's effort to link the scissors to Lovitt.
Former death row inmate Aaron Patterson is one of 17 wrongfully convicted men freed in Illinois, the only state with a death penalty moratorium. The American Bar Association has called for a nationwide moratorium on executions, citing documented problems in capital trials and sentencing such as racial discrimination, inadequate legal representation and other constitutional violations. Getty Images/Tim Boyle
“The DNA along with the other evidence has been destroyed and destroyed in a very intentional way,” says Starr, now dean at Pepperdine University School of Law in Malibu, Calif. Starr remains affiliated with the Washington office of Kirkland & Ellis, which is representing Lovitt, along with Rob Lee of the Virginia Capital Representation Resource Center in Charlottesville.
Lawyers for the state say discarding the evidence was an honest mistake that doesn't matter because the other evidence against Lovitt was so strong. “This case is not a DNA case,” says Emily Lucier, a spokeswoman for the Virginia attorney general's office. [1]But the U.S. Supreme Court saw Lovitt's plea as strong enough to order a stay of execution on the evening of July 11, only four-and-a-half hours before Lovitt was scheduled to die by lethal injection.
Lovitt's case awaits further action by the justices at a time when the death penalty debate is focusing more than ever on the risk of convicting and executing an innocent defendant. [2]The advent of DNA testing — which has been credited with “exonerating” more than 160 prison inmates over the last 15 years, including 14 men on various states' death rows — has focused attention on using new technology to prevent executions of innocent defendants. [3]
Kenneth Jost (CQ Researcher)
Daryl Atkins never did well in school. He never lived on his own or held a job. He scored 59 on a standard intelligence test — below the benchmark IQ level of 70 commonly used to define mental retardation.
Atkins' mental deficiencies did not, however, prevent a jury in southeastern Virginia from sentencing him to death for the 1996 robbery-abduction-killing of a U.S. airman.
The Virginia Supreme Court was also unmoved. “We are not willing to commute Atkins' sentence of death to life imprisonment merely because of his IQ score,” the court wrote in a 5-2 decision in September 2000. [1]
One year later, however, the U.S. Supreme Court agreed to use Atkins' case to reconsider an issue it had decided 12 years earlier: whether it is constitutional to execute someone who is mentally retarded. In 1989 the court had held that sentencing a mentally retarded offender to death does not violate his Eighth Amendment right not to be subjected to “cruel and unusual punishments.” [2]
Atkins' lawyers say things have changed since then. “The Eighth Amendment does not have a static meaning,” the lawyers wrote in a petition asking the high court to hear the case. They noted that nearly half of the states with capital punishment now specifically bar execution of mentally retarded offenders.
Members of the Georgetown Campaign to End the Death Penalty collect petition signatures from fellow students at Georgetown University in Washington, D.C., during Death Penalty Awareness Week in October. Students started the campaign five years ago, when public opposition to capital punishment began increasing. CQ/Thomas J. Colin
Mental retardation advocacy groups agree. “The death penalty is supposed to be reserved for the most culpable of people,” says Doreen Croser, executive director of the American Association on Mental Retardation. “By definition, a person with mental retardation doesn't meet that standard.”
Some law enforcement advocates disagree. “The assessment of the retarded in criminal justice, as in all other aspects of life, ought to be on an individualized basis,” says Barry Latzer, a professor at the John Jay College of Criminal Justice, City University of New York.
Atkins' case is one of the most recent manifestations of a broad re-examination of capital punishment in the United States over the last several years. While polls still show a solid majority of Americans favor use of the death penalty, critics have made headway with arguments about the fairness and reliability of the system for meting out death sentences. DNA profiling, or so-called genetic fingerprinting, has been used in scores of cases in the United States since 1987 to exonerate wrongfully convicted defendants — including many on death row or serving long sentences. [3]