The Death Penalty

Oct 9, 2009 - by J. J. Maloney - 0 Comments

Jan. 30, 1999 Updated: Feb. 8, 1999 and June 25, 2001

An overview of the death penalty in this century -- with the leading arguments for and against capital punishment, and some of the leading cases that have motivated the public.

An overview of the death penalty in this century -- with the leading arguments for and against capital punishment, and some of the leading cases that have motivated the public.

by J.J. Maloney

More than 4,500 people have been executed in the United States since 1930. There is no way of knowing how many have been executed in U.S. history because executions were often local affairs, with no central agency keeping track of them.

In addition to judicially imposed executions,  from 1882 through 1951 there were 4,730 recorded lynchings by vigilantes in the U.S, with many of them being highly public affairs.

Even when miscreants were afforded a trial and executed in accordance with law, such events were often local in nature. For example, while states such as New York electrocuted condemned persons at Sing Sing's electric chair as early as the late 19th century, in states such as Missouri hangings were conducted at local county jails as late as 1937.

Capital punishment is still one of the two most divisive debates in the U.S. -- the other being abortion. The late Gov. Mel Carnahan found out how controversial during the summer of 1999 when he spared the life of convicted killer Darrell Mease at the specific request of Pope John Paul II during the Pope's celebrated trip to St. Louis. This was an unusual step for Carnahan, who had previously allowed the execution of 22 men during his seven years in office as governor of Missouri.

This brief flirtation with mercy cost Carnahan. Newspapers across Missouri printed letters bitterly denouncing him for giving in to the Pope. When he ran for the senate in 2000, his opponent, incumbent Sen. John Ashcroft, continued to make an issue of the pardon.

Prior to the Pope arriving in St. Louis, the Missouri Supreme Court had unilaterally changed Mease's execution date -- which was to have occurred while the Pope was in St. Louis -- to a date after the pontiff's departure. Pope John Paul II is the world's leading advocate for the abolition of capital punishment and speaks out on the issue frequently. Even so, it would appear that many Catholics are in favor of capital punishment -- along with the solid majority of U.S. citizens in general who are in favor of the death penalty.


Famous Cases

During the 20th century there was a smattering of death-penalty cases that galvanized the public, at least temporarily. The first "modern" unpopular execution was that of Nicola Sacco and Bartolomeo Vanzetti on Aug. 23, 1927. Sacco and Vanzetti, Italian immigrants who spoke broken English and were anarchists, were convicted of a payroll robbery in Massachusetts in 1920, during which a paymaster and his bodyguard were shot to death. At their joint trial dozens of witnesses testified to their whereabouts at the time of the robbery and murders, to no avail. Some of the key prosecution witnesses had at first been unable to identify the defendants, but at trial were sure of their identifications. In the seven years between their convictions and electrocutions, much additional evidence surfaced to cast doubt on their guilt. In 1925, Celestine Madeiros – condemned to death in another murder case – confessed to being a member of the gang that committed the robbery for which Sacco and Vanzetti were condemned.

Felix Frankfurter wrote a book-length article for The Atlantic Monthly that examined their case and concluded their convictions were a travesty of justice – and named the probable culprits, a gang of professional robbers. Twelve years after writing this article, Frankfurter was appointed to the United States Supreme Court, and is recognized as one of the century's best jurists.

By the time of their executions, the Sacco and Vanzetti case had not only stirred up a maelstrom of protests in the United States, but around the world.

In August 1977, 50 years after the execution, Gov. Michael Dukakis of Massachusetts signed a proclamation clearing the names of Sacco and Vanzetti.

The next great controversial case involved Bruno Richard Hauptmann, a German immigrant convicted of the 1932 kidnapping and murder of Charles Lindbergh's baby. Lindbergh – the first aviator to fly solo across the Atlantic – was an international hero, and the press descended on New Jersey in droves. It's been said that more journalists covered the Lindbergh kidnapping than covered World War I. Hauptmann was electrocuted in 1936.

Again, the issue of Hauptmann's guilt is a continuing matter of controversy – never to be settled to everyone's satisfaction. There have even been recent allegations that Lindbergh or a member of his family accidentally killed the child, and that the kidnapping was staged to cover up that fact.

While most of the death-penalty cases that have aroused the public have been those involving white people, a notable exception was that of the Scottsboro Boys: Roy Wright, 13, Eugene Williams, 13, Andy Wright, 17, Haywood Patterson, 17, Olin Montgomery, 17, Willie Roberson, 17, Ozzie Powell, 16, Charles Weems, 21 and Clarence Norris, 21. The nine black youths were accused of raping two white girls, Ruby Bates and Victoria Price, on a freight train passing through Alabama on Mar. 25, 1931. During the trial, which began one week after the youths were indicted, more than 100 national guardsmen were stationed at the courthouse and upwards of 10,000 outsiders crowded into the small town.

The tone of the trial can be derived from the following quote from The New York Times: "Now the question in this case is this: Is justice in the case going to be bought and sold in Alabama with Jew money from New York?"  --Prosecutor Wade Wright addressing the jury in Alabama v Patterson.

Eight of the youths were convicted. A mistrial was declared in the case of 13-year-old Roy Wright when the jury hung up, with eleven for execution and one for life imprisonment. The other eight were sentenced to die. The verdicts resulted in demonstrations in Europe and the United States. Liberal organizations, including the ACLU, NAACP, and International Labor Defense, sprang to the defense. Albert Einstein called for the defendants to be freed.

Eleven months after the arrest of the defendants, Ruby Yates wrote a letter denying that she had been raped.

In November 1932, the U.S. Supreme Court overturned all of the convictions.

On Apr. 9, 1933, Haywood Patterson was retried, convicted and sentenced to death again.

On May 7, 1933, thousands of persons marched in Washington in protest of the various trials.

On June 22, 1933, Judge Horton vacated Haywood Patterson's conviction, granting a new trial. The cases were moved to the jurisdiction of a different judge, and in November and December 1933, Haywood Patterson and Clarence Norris were retried, convicted and again sentenced to death.

The case of the Scottsboro Boys is remarkable for the number of trials, convictions, reversals and reconvictions involved. In that respect, it may be unprecedented in U.S. criminal law.

On July 24, 1937, all charges were dropped against Roy Wright, Eugene Williams, Olen Montgomery and Willie Roberson. On July 5, 1938, the last death sentence, that of Clarence Norris, was commuted to life imprisonment by Alabama's governor.

Eventually all of the Scottsboro Boys were paroled from prison, with the exception of Haywood Patterson, who escaped from prison in 1948. Patterson was later convicted of manslaughter in Michigan following a barroom fight, and died in prison a year later.

On Jan. 23, 1989, Clarence Norris, the last living Scottsboro Boy, died at age 79.

The fourth great controversial, capital case of this century was that of Julius and Ethel Rosenberg, who were convicted of giving atomic secrets to Russia during World War II and sentenced to die for treason. The Rosenberg case occurred during the McCarthy era – when people were forced to sign loyalty oaths and the fear of communism was not only widespread but nearly hysteric in nature. The Rosenbergs maintained their innocence, and opposition to their execution was widespread. They were electrocuted on June 19, 1953.

The death-penalty case that generated the greatest outcry of all, however, involved a California paroled convict named Caryl Chessman. In 1948 an armed robber/rapist was victimizing couples found on lonely roads in the Los Angeles area. The robber would occasionally use a flashing red light on his car roof – similar to the red lights used by police at that time – to pull the couples over.

Among the many criminals questioned about this crime was Chessman. He signed a confession, which he later recanted, contending he had been coerced to confess by the police. There was almost no question that he had been interrogated for 72 hours and had been beaten to some extent – this is set out in a Supreme Court dissenting opinion. But the prosecutor maintained the confession was nonetheless voluntary.

Chessman was indicted under California's Little Lindbergh law, which allowed the death penalty in a case of kidnapping where the victim was harmed. The prosecutor contended that Chessman committed kidnapping when he moved female victims from the car they were in to his car, for the purpose of raping them.

Chessman, an egotist of the first order, decided to represent himself – thereby reconfirming the wisdom of the adage "the lawyer who represents himself has a fool for a client." He was convicted and sentenced to die.

Chessman was also a bright man. He studied law while on death row and fought his case up to the U.S. Supreme Court seven times – winning small victories along the way. He also became a writer, authoring four books. The first was Cell 2455: Death Row, which became a best seller despite consisting largely of Chessman's idealization of himself as a standup convict and old-fashioned outlaw, who specialized in robbing thieves and defying the law. He also wove a convincing case for his innocence.

Chessman, in many ways, fell victim to Hollywood's idealization of criminals and convicts, and he parroted those fantasies in his first book – which, while it may have won him fans among many, also solidified him as a hopeless sociopath in the minds of many others.

The extreme controversy surrounding the Chessman case may be traced to a moment in time. The last year of Chessman's life, 1959-60, was also the year in which the nation turned away from Republicanism (conservatism) to the Age of Camelot. Eisenhower and Nixon were leaving the White House, to be replaced by Kennedy and Johnson. This marked the beginning of the great civil-rights advances, which paralleled the prisoner-rights and patients'-rights movement.

As Chessman's execution approached, it was greeted with tremendous protest – not only in the U.S., but around the world. Billy Graham, Eleanor Roosevelt, Robert Frost, Pablo Cassals, Aldous Huxley and many thousands of others wrote to California Gov. Edmund G. "Pat" Brown pleading for mercy for Chessman. Brown, who permitted the execution to proceed, was tormented by that decision for the rest of his life. Ironically, California subsequently repealed the Little Lindbergh law, and by the time of Chessman's execution kidnapping no longer carried the death penalty.

When Chessman was executed in San Quentin's gas chamber, on May 2, 1960, the debate on capital punishment had reached a peak, a peak that was fueled further by an even blacker irony: After Chessman's execution, it was revealed that a federal judge had granted him a last-minute reprieve, but the judge's clerk had lost precious minutes dialing a wrong number before getting through to the death chamber, and the cyanide pellets had been dropped only moments before word of the stay got through to San Quentin's warden.

Prior to his death Chessman had claimed a man named Terranova was the "Red Light Bandit," but the L.A. police said no such man existed. After Chessman's death, William Bradford Huie (author of The Execution of Private Slovak) wrote a story for a popular magazine claiming that Terranova was an inmate in the L.A. County Jail at the time police said he did not exist.

In 1968, Dr. Karl Menninger, then the most prominent psychiatrist in the U.S., published his book The Crime of Punishment. Menninger had long been opposed to capital punishment and harsh prison sentences and he became a beacon light for opponents of both.

As liberal social activism mounted, however, so did its counterpart. In 1964, Barry Goldwater, in his run at the White House, made "crime in the streets" an issue in his campaign – to be followed by similar calls from George Wallace.

Despite these early calls for "law and order," the Warren Court was in full bloom. Although former Chief Justice Earl Warren is now frequently decried is a rabid liberal because of many of the court's rulings in the area of civil rights and criminal law – i.e., Brown v. Board of Education (prohibiting segregated schools), Gideon v. Wainright (requiring the appointment of counsel in all felony cases), the Miranda ruling, (requiring police to inform a suspect of the right to counsel and to cease questioning if he requests counsel), the fact is that Warren was the Republican governor of California at the time of his 1953 appointment by President Eisenhower (an appointment Eisenhower later said he regretted).

In 1969, newly elected President Nixon appointed Warren Burger, another Republican, chief justice. The Supreme Court's liberal bent culminated when the high court struck down capital punishment in 1972, on the ground it was cruel and unusual punishment as then applied.

But the tide was turning irrevocably back toward conservatism. By late 1972 Nixon's director of prisons, Norman Carlson, had declared that rehabilitation had been tried and failed, and that the Federal Bureau of Prisons was getting out of the rehabilitation business.

Parole was abolished in the federal prison system – with many states following suit – most often by severely restricting parole (i.e., requiring offenders to serve up to 80 percent of their sentence before being eligible for parole), or by mandating sentences of life imprisonment without parole. By the mid-1980s, even supposedly liberal Democratic candidates for office were routinely pledging allegiance to the War on Crime.

In 1976, after 35 states and the federal government had reinstated capital punishment, the Supreme Court ruled that – in view of new statutes designed to reduce the arbitrary imposition of the death penalty – it was no longer cruel and unusual. Since 1976, more than 750 prisoners have been executed in the United States, and about 4,000 convicts are on death rows waiting to be executed.

In the past few years the Supreme Court has acted to shorten the appeal time for condemned prisoners, largely by restricting the use of habeas corpus – the foremost safeguard in the Constitution between citizen and government.

Since the reenactment of capital punishment, several dozen condemned prisoners have been released from death row when their convictions were overturned – in some cases where the evidence of their innocence was unmistakable. Those cases have not caused a great outcry, however – even though dedicated abolitionists cite them at every opportunity. On Jan. 10, 1999, The Chicago Tribune commenced a series of articles on murder convictions, nationwide, that have been overturned due to prosecutorial or judicial wrongdoing, including the cases of many who were sentenced to die.

On Jan. 4, 1999, it was reported that a journalism class in Chicago had obtained a confession from Alstory Simon to a murder for which Anthony Porter had been sentenced to death. Porter had come within two days of being executed when the Illinois Supreme Court granted a stay of execution because of concerns about Porter's mental status.

The poster child for abolition in the late 1990s, ironically, was not a person wrongfully convicted but a woman whose guilt was readily admitted – Karla Faye Tucker, executed in Texas in February 1998. Tucker, an attractive young woman, admitted her complicity in the murders of two people in Houston some 15 years earlier. The crimes were heinous – involving the use of a pickaxe, and the claim by Tucker at the time that she achieved orgasm during the killings. She said she was a drug addict, and was using many different drugs at the time of the killings.

In jail she turned to religion and claimed to be a born-again Christian – a claim widely accepted by many in the "religious right," including Pat Robertson, who told "60 Minutes" that if then Texas Gov. George Bush "lets this sweet woman of God die, he's a man who shows no mercy."

The execution of Tucker underscored another dichotomy -- that capital punishment not only cleaves society, but often pits one victim against another. The brother of Deborah Thornton, Tucker's female victim, campaigned for her death sentence to be commuted, while the husband of that same victim cried out for Tucker to be executed

A woman had not been executed in Texas in 120 years and clemency appeals poured in to Gov. Bush from around the world.

Tucker's supporters raised the objection that the Carla Faye Tucker of 1998 was not the same person who had coldly participated in two murders 15 years earlier – that, through maturation and religious conversion she had been "saved," and that the person she had become did not deserve to die.

Actually, this argument had been raised before, but had not received widespread publicity prior to Tucker's execution. Prior to the 1960s, most executions were carried out with relative swiftness – a delay of two or three years from sentencing to execution being common. If a condemned person chose not to appeal – as was the case with Carl Austin Hall and Bonnie Brown Heady, who kidnapped and murdered young Bobby Greenlease in 1953 – the execution could occur within months of sentencing.

After the reinstatement of capital punishment in 1976, however, and because of court decisions such as Gideon v. Wainright, requiring the appointment of counsel, the Miranda decision, Brady v. Maryland (requiring a prosecutor to disclose evidence to defendants), and a host of other decisions, the appellate process became much longer. It has become common for the appellate process in capital cases to take 10 to 20 years. The reasons for delay – believed by many to be a result of tactics by the condemned – are many. More than 150 condemned inmates in California, for example, do not have a lawyer to appeal their case. Randy Kraft, touted by some as the serial killer of the century, was nearly released from death row because, two years following his conviction, the state had not appointed a lawyer to handle his appeal.

Death row prisoners are routinely segregated from other prisoners and often spend 23 hours a day in their cell. So, not surprisingly, a good number of them begin to study, or turn to religion. After 10 or 15 years there is a meritorious argument that many of them have changed markedly, and are, in fact, a different person than they were the day they were convicted.

Tucker exemplified that argument. When she was executed it was not only a refutation of the argument that people who change while on death row deserve reconsideration, but her death helped legitimize the execution of women – who, historically, have suffered the death penalty rarely. Only a month after Tucker's execution, a second woman was executed with virtually no fanfare.

Although support for capital punishment plummeted 15 percent in Texas following Tucker's execution, many more executions have followed and it appears that Texans' support for capital punishment has been restored to previous levels.

Some polls suggest that support for capital punishment nationally now stands at 77 percent. Traditionally, a majority of women were opposed to capital punishment – this was particularly true at the time of Chessman's execution. Since the 1960s that has changed, with a majority of women now favoring the death penalty.

Support for the death penalty is so extreme in some areas of the United States that Gordon Dillow, a columnist for the Orange County Register, argued in July 1998 that condemned men should not only be denied a last meal of their choice, but ideally should be limited to a glass of water prior to being executed.

In the 1990s three retired U.S. Supreme Court justices have come out against the continuation of capital punishment:

"I have come to think that capital punishment should be abolished."  --Lewis F. Powell, Jr., retired Supreme Court Justice, 1991

"One area of law more than any other besmirches the constitutional vision of human dignity. . . . The barbaric death penalty violates our Constitution. Even the most vile murderer does not release the state from its obligation to respect dignity, for the state does not honor the victim by emulating his murderer. Capital punishment's fatal flaw is that it treats people as objects to be toyed with and discarded. . . . One day the Court will outlaw the death penalty. Permanently." --William J. Brennan, Jr., retired Supreme Court Justice, 1996

"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled—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 and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed." --Harry Blackmun, retired Supreme Court Justice, 1994

The present Supreme Court seems destined to approve of capital punishment for the foreseeable future. Last week the court ruled that Florida's use of the electric chair does not constitute cruel or unusual punishment, even though the challenge to the electric chair was prompted by the fact a condemned man's head caught fire while being electrocuted. This ruling by the court is reminiscent of a 1947 U.S. Supreme Court ruling – Francis v. Resweber – a Louisiana case involving a man who was unsuccessfully electrocuted and then subjected to a second, fatal, electrocution. The Supreme Court ruled that a second electrocution, for the same crime, did not constitute double jeopardy or cruel and unusual punishment.

The historical argument in favor of capital punishment has been the deterrent theory – that a person contemplating the crime of murder will be dissuaded by the prospect of being executed for his or her crime. This argument has been around for a good while, and had numerous detractors back when executions were relatively swift and sure.  The deterrent theory is undermined by the fact that executions are carried out in relative secret.  Although news reporters are allowed to attend executions, they are not allowed to film the execution -- even where the condemned person agrees to such filming.  As executions have become more common, they are less frequently reported in the media -- and thereby lose a good portion of whatever deterrent effect they might have had.

In recent times, the deterrent theory has been abandoned to a large extent – being replaced with the more pragmatic argument that capital punishment is justified on retributive grounds and will certainly prevent that same killer from ever being released from prison and killing again.

This theory is lent credence by the great upswing in serial-killer and sex-offender crimes that seemed to burgeon in the '60s and beyond. Prior to 1960, cases of serial murder and mass murder were relatively rare – with cases such as that of Ed Gein, Albert Fish, Charles Starkweather, Boston Strangler, etc., coming every few years or so. For whatever reason, the incidence of serial killers and mass killers exploded in number in the 1960s and beyond (there is no way of knowing how many serial killers went undetected -- or unreported -- in earlier years).

The seminal serial-killer case appears to be the Tate-Labianca murders (Charles Manson) in the late '60s. That was the end of an age of innocence. Since then we have had John Wayne Gacy, Dean Corll, The Trashbag Killer, the Freeway Killer (both of them), the McDonalds Killer, Ted Bundy, the Hillside Strangler, the Green River Killer, Wayne Williams, Robert Berdella, Jeffrey Dahmer, Richard Ramirez, and countless others – so many serial killers, in fact, that the FBI started its Behavioral Science Unit for the sole purpose of charting the phenomenon. The FBI has estimated that, at any given moment in time, as many as 50 serial killers are at work in the United States.

Another murderous phenomenon that outraged many people was the "drive-by shooting" – a drug and gang-related crime whereby mostly youthful killers often sprayed bullets into anyone who happened to be in the wrong place at the wrong time. This is mirrored by the schoolyard shootings that seemed to mushroom into a mini-epidemic in 1998 -- resulting in widespread calls for the lowering of the age at which offenders can be prosecuted as adults and executed.

The prototypical case for capital punishment would be that of Lawrence Singleton – the man who, in 1979, raped 15-year-old Mary Vincent in California and then chopped her arms off with an ax.

Because of California statutes, Singleton was sentenced to only 14 years in prison and was released in 1987. When he was first released from prison, there was such an uproar in California that Singleton had to be housed on the grounds of a prison because no community would accept him as an inhabitant. He moved to Florida in 1987, where his presence was a matter of great controversy. People cursed and spat at him.  One used-car dealer offered him $5,000 and a one-way plane ticket if he would leave the state. At one point Singleton attempted suicide, placing a tarpaulin over a car while the motor was running and he sat in the driver's seat. At age 69, Singleton stabbed a woman to death in early 1997 and has been sentenced to die in Florida.

Singleton is not unique – many repeat killers (of recent times) were on parole at the time they committed horrendous multiple murders – causing many in society to believe capital punishment is the only way to ensure that such killers do not strike again.

Oddly enough, while the United States spends great sums of money to research the causes of cancer, polio, AIDS, and many other diseases, little or no money is spent to discover the causes of crime. In 1930 Karl Menninger said his main objection to capital punishment was that it constituted a waste of good guinea pigs. That objection would be as true today as it was then.

As long as the Gacys and Bundys and other serial killers face execution, they will not cooperate with any meaningful study of their behavior.

Yet, given the choice between studying such killers – in the hope of preventing future murders – or executing them in retribution, government entities throughout the United States choose the latter.

As the United States embraces capital punishment more and more fervently -- 38 states have reinstated the death penalty -- the rest of the Western world has largely chosen to eschew the death penalty.

The United States, a leader in technology and science – a leader in so many arenas – is considered "backwards" when it comes to penology. The U.S. is the only Western nation to still impose the death penalty on its citizens.

The capital punishment issue does not exist in a vacuum -- it is part of our national policy toward crime. When Caryl Chessman was executed in 1960, the state of Missouri had about 3,300 convicts, and there were only 225,000 convicts in the United States. Today, Missouri has 25,000 convicts, and there are nearly 2 million convicts in the U.S.

This has taken place while crime rates have been dropping (in a period of unusual national prosperity). Like Missouri, a number of states now spend more money on prisons than on higher education.

Eventually the United States will adopt a national policy on the treatment of murderers. When that happens, we will harken back to the 1930s wisdom of Karl Menninger – that we not waste good guinea pigs.

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