June 29 marks the 40th anniversary of the landmark Supreme Court case Furman v. Georgia. In Furman, the high court abolished the death penalty on the grounds that it violated the Eighth Amendment prohibition on cruel and unusual punishment. The decision also barred the use of capital punishment for rape convictions.
"The fact that the State may seek retribution against those who have broken its laws does not mean that retribution may then become the State's sole end in punishing. Our jurisprudence has always accepted deterrence in general, deterrence of individual recidivism, isolation of dangerous persons, and rehabilitation as proper goals of punishment," wrote Justice Thurgood Marshall in his concurring opinion. "Retaliation, vengeance, and retribution have been roundly condemned as intolerable aspirations for a government in a free society."
Marshall also addressed the issue of inevitably executing the innocent. "No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some," he noted.
"Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law," Justice Marshall added.
Capital punishment was reinstated with Gregg v. Georgia in 1976, but at least for several years there were no executions in the U.S.
Forty years after Furman, problems still plague the death penalty, when in reality the problems never went away. And as long as there are executions, we'll continue to have a problem.
The writing is on the wall for those who offer to read it. Recently the Arkansas Supreme Court struck down the death penalty law in that state, finding it is unconstitutional for the department of correction to make policy by deciding execution procedures and what lethal injection drugs to use. Rather, it is the legislature's job to decide that, and in any case Arkansas has not executed since 2005. Although the court did not find lethal injection or the death penalty itself unconstitutional in the 5-2 decision, state lawmakers would have to go back to the drawing board and write a new law. Actually, they should let it go and abandon the practice altogether.
In North Carolina, the state legislature passed a bill that would gut the Racial Justice Act. Signed into law by Governor Bev Perdue in 2009, the Racial Justice Act allowed death row convicts to challenge their sentences on the grounds that racial bias was a significant factor in their sentencing. The new scaling back of the law, if passed, would prohibit death row inmates from relying solely on statistics. This would effectively remove the "racial" and "justice" components of the original law, leaving exactly what conservatives and prosecutors wanted in the first place. And if the governor signs this regressive legislation, the Tarheel State will embrace its legacy of racial injustice, and demonstrate its failure to resist emulating its more backward neighbor to the South. Remember that when prosecutors keep blacks off juries due to racial motivations, both white defendants and defendants of color are harmed.
Meanwhile, in Texas, the state's Democratic Party passed a platform calling for abolition of the death penalty. And Hank Skinner--a Texas death row inmate who was granted a stay of execution in November in order to conduct a DNA test--has been given the green light to proceed with the testing. Skinner's stay of execution came as a result of pleas from death row exonerees and abolition activists. The problem with DNA testing is that key evidence in the case is missing. How convenient.
And how typical of Texas, where a man named Cameron Todd Willingham was executed in 2004 for the arson murder of his three young daughters -- even though many believe no arson occurred. Another man, Carlos DeLuna, was put to death for a murder another man he resembled bragged about committing. Moreover, his innocence was proven posthumously by a Columbia law professor 23 years after the execution.
Texas is the place where an appellate judge wouldn't allow lawyers to file a last minute appeal in a death row case because 5pm was quitting time. Judge Sharon Keller closed the court, and the condemned man Michael Wayne Richard, was executed four hours later. Further, Kerry Max Cook, who spent years on death row and was released in a plea deal, was subjected to "egregious prosecutorial misconduct" according to an appeals court. Now trying to clear his name, Cook is accusing the prosecutor in his case of keeping the bloody murder weapon in his home as a souvenir. The DNA test was taken, and we await the results.
And finally, the SAFE California Act--a ballot initiative appearing on the November ballot--would abolish capital punishment and save the state $1 billion in five years if voters. If the measure passes, it would eliminate one-quarter of the nation's death row.
They say if it ain't broke, don't fix it. Well, not only is the death penalty irretrievably broken, it is inherently broken. Four decades after the Furman decision, this is as clear as ever. Had the death penalty been a product, it would have been judged as shoddy, defective and unreliable. It would have been recalled and removed from the shelves long ago.
David A. Love is the Executive Director of Witness to Innocence, a national nonprofit organization that empowers exonerated death row prisoners and their family members to become effective leaders in the movement to abolish the death penalty.
Follow David A. Love on Twitter: www.twitter.com/davidalove
David A. Love: Moving Towards a Worldwide Moratorium on the Death Penalty
Really though, I wouldn't have a problem with this if death penalty foes would simply be honest. They should just simply admit they oppose it in all cases (which some do) and equally fight to end all executions without regard for whatever perceived "flaws" they can dig up.
DNA
http://www.huffingtonpost.com/2012/07/07/andre-davis-released_n_1655914.html
False testimony and prosecutorial misconduct
http://www.chron.com/news/houston-texas/article/Texas-sets-man-free-from-death-row-1619337.php
http://blog.cleveland.com/metro/2010/03/d.html
Mistaken or False Eyewitness Testimony
http://www.law.northwestern.edu/cwc/exonerations/ilPorterSummary.html
There is but so much space to fill and these cases don't even break the surface of pereceived "flaws." In the last 4-5 years there have been exonerations of people who have served at least 10+ years in prison. That means a killer/rapist/robber has been running the streets for 10+ years, and that victims' families have been hoodwinked and bamboozled into demanding "justice" to be carried out on someone who did NOT commit the crime.
Oh and before you start talking about victims and saying that I would have a different view if it were my loved one, I've already been there. The murderer may have deserved to die, but we didn't believe that his FAMILY should have to go through what we went through (funeral and burial) as they already had to deal with the stigma of having a murderer in their family. Our demand for "justice" and "closure" should not result in a continual circle of suffering.
So be honest and principled. Admit we could never fix it to your level of satisfaction and stop bringing up things that don't actually affect your stance.
As for the murder's family, well it's the murderer's fault for their suffering when he is put to death. His actions caused his sentence They are more of his victims. Therefore, it makes no sense to use their suffering he created as an excuse to him a lighter sentence. After all, it's not enjoyable for a family to have their loved one put in prison either. Should we abolish that too?
No one can, responsibly, accept what the Liebman/DeLuna report, ”Los Tocayos Carlos: Anatomy of a Wrongful Execution,” says, without fully fact checking it, as well as evaluating bias.
It is unwise to, blindly, accept any study.
Downright foolish it would be to blindly accept a study from within a hotly contested public policy debate, when the study was conducted by an active partisan within that debate. James Liebman is an active anti death penalty defense attorney.
When reviewing the previous record of both Liebman and the anti death penalty movement, a healthy skepticism would be merited and wise.
What happened when folks took the time to fact check Liebman's prior opus, "A Broken System"?
Take a look.
"A Broken Study: A Review of 'A Broken System' "
http://prodpinnc.blogspot.com/2009/10/broken-study-review-of-broken-system.html
Regardless, most in the media, as Love, will use blind faith, instead of fact checking.
MORE ON DELUNA
"The DeLuna Deception: At the Death House Door" Can Rev. Carroll Pickett be trusted?"
http://homicidesurvivors.com/2009/01/30/fact-checking-is-very-welcome.aspx
"Those closest to Carlos DeLuna case say Columbia Human Rights study doesn't raise new questions",
http://www.caller.com/news/2012/may/16/those-closest-to-carlos-deluna-case-say-columbia/
"Report questioning execution doesn't sway lawyers", 5/16/12
http://www.chron.com/news/article/Report-questioning-execution-doesn-t-sway-lawyers-3564112.php
Some reality.
In the Skinner case, there appears no possible way that he can be found innocent, via DNA, with or without the "key" piece of misplaced evidence. I believe you are speaking of the mystery jacket, which, in reality is no mystery. It belonged there, as it belonged to the murdered Twila.
What the readers should know.
Skinner refused additional DNA testing, pre trial, because he feared he would be even more implicated with more testing - the only reason for such a refusal.
There are two confessions from Skinner.
In addition, Skinner offered to plead guilty to one of the three murders, in exchange for a reduced sentence. The prosecution refused.
Skinner's own blood splatter expert testified that the blood evidence did not support Skinner's only alibi, that he was too intoxicated to have taken part in the murders.
No one, knowledgeable of this case, believes additional DNA testing can possibly prove Skinner innocent. He's a guilty triple murderer.
Consider:
Skinner declined additional DNA testing, pre trial, knowing it would clear him, because he preferred a death sentence, instead.
It's the only "logic" whereby additional DNA testing could save Skinner, now. Of course, it won't.
It doesn't matter that just today there is a report of (another) man who has been released from prison after serving 30 YEARS in Illinois for a rape and murder that he didn't commit. This person has said nothing about Anthony Graves, Clarence Brandley, the late Randall Dale Adams, Anthony Porter, Darryl Hunt, Ray Krone, etc. This person has not demanded that there be stronger legal ramifications against prosecutors and law enforcement who engage in misconduct (i.e. disbarment, prison time, etc.)
Wrongful convictions are a slap in the face to victims' families as well, but all you will hear is a pin drop. Thank you Mr. Love for your continous work. May the sprit continue to be with you.
In Arkansas, the legislagture is responsible for establishing execution protocol. As any legal entity can, the legisllature decided they would leave it up to a legal proxy, the dept of corrections, to establish those procedures. Reversing hundreds of years of legal and international precedent on this, the Arkansas Supreme Court decided the legislature cannot do that. So, the legislature will simply rubber stamp the dept of corrections protocol and it will meet the Supre Court's decison, even though that is what Arkansas already had.
In North Carolina, what the amendment actual does is to direct a racial bias review of both the actual jurisdiciton and actual case, as opposed to cases and jurisdicitions which have zero connection to the actual case being considered.
The current RJA law is the equivalent of finding that since there may be a patter of inaccurate writing nationally, that we will not allow Mr. Loves articles to be published, because his MIGHT be inaccurate, as well. Ridiculous, of course, but that is what the RJA is, in its current form.
I may have missed an article of yours covering this, but if you've never tackled general vs. specific, it might be an interesting and enlightening topic to do? I don't think most people even realize the difference between general and specific deterrence, at least from what I've seen posted here. If you've done one, could you drop a link? I'd be interested to see your take on it either way. Thanks!