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Criminal Justice Magazine
Summer 2001
Volume 16, Issue 2

The Death Penalty Under Attack

By Sen. Russ Feingold

Editor's Note: Some of the court cases discussed here may have been decided in the interim between when this article was written and the magazine's publication.

The death penalty in America is under renewed scrutiny. As the country begins to carry out record numbers of executions, Amer-icans are reviving the national debate on whether the federal and state governments should be in the execution business. As Americans, do we want the government to kill people in our names?

My thoughts and prayers are with the families of those who have lost their loved ones to murder. Without question, our society should severely punish murderers. Of late, there have come cases where the heinousness of the crime and the certainty of the defendant's guilt have motivated many to favor the death penalty.

More and more, however, we also learn of cases that move Americans to question the death penalty. We see growing numbers of innocent people exonerated. We see mounting evidence that states apply the ultimate penalty in an unequal manner. And with the rising numbers of executions, we see America increasingly associated with a killing machinery. And many of us do not like what we see.

The time has come for a pause. Before our governments execute one more innocent, before one more person of color pays the ultimate price where a white person would not, and before we inalterably recast our identity as a justice-seeking nation, we should stop the machinery of death. We should suspend executions at least as long as it takes to ensure that state and federal governments do not carry them out unjustly or unfairly.

Rethinking at the Supreme Court

This year, the U.S. Supreme Court has shown renewed interest in the death penalty. On March 26, the Court announced that it would decide whether the Constitution's ban on "cruel and unusual punishment" bars execution of those who are mentally retarded. (McCarver v. North Carolina, 121 S. Ct. 1401 (2001).) The next day, the Court heard oral argument on whether a Texas jury that heard the retrial of Johnny Paul Penry had a sufficient opportunity to consider his mental retardation when deciding whether to recommend his execution. And on April 16, when Walter Mickens Jr. had just one day to live on Virginia's death row, the Court stayed his execution to review whether he had received adequate counsel. (Mickens v. Taylor, 69 U.S.L.W. 3670 (2001).)

Executing the retarded

In 1989, only two states with the death penalty-Georgia and Maryland-disallowed executing the retarded. When Johnny Paul Penry's case raised a constitutional challenge to the death penalty, Justice Sandra Day O'Connor wrote for a 5-4 majority that "at present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment." (Penry v. Lynaugh, 492 U.S. 302, 335 (1989).)

Today, 15 states ban such executions. Add states that have no death penalty, and half the states no longer execute the retarded. On March 26, 2001, the Court announced that it would decide whether a national consensus now exists against executing the mentally retarded. The Court made the announcement in connection with the case of Ernest P. McCarver, who, despite his IQ of 67, waits on North Carolina's death row. The Court will hear argument in the case in the autumn.

Since 1976, this country has executed 35 retarded persons. Experts estimate that about one in 10 of the 3,600 inmates on death rows are mentally retarded. Many of these inmates have the minds of children, little understanding of their moral culpability, and slight comprehension of what the state has in store for them. Only two other countries, Kyrgyzstan and Japan, execute the retarded. The Supreme Court should put an end to these indecent killings.

A day after the Court granted certiorari in McCarver, it once again was presented with the case of Johnny Paul Penry. On March 27, the Court heard argument on whether the amended instructions the jury received in his retrial adequately addressed the deficiencies the Court found in 1989. On retrial, the second jury received the same verdict form as in the first trial. It asked the jury to answer three questions: Was the conduct that caused the victim's death deliberate? Did the defendant present a continuing threat to society? And was the conduct that caused the death unreasonable in response to any provocation by the victim?
In the retrial, the judge told jurors that if they wanted to recognize a mitigating circumstance, they should answer "no" to one of the three questions. Thus, the only way to prevent a death sentence was to answer "no" to a question that a juror might have thought required a "yes" answer. Justice Sandra Day O'Connor called the instruction "awkward, to say the least," and Justice David Souter observed that the instruction told the jurors, "You may act irrationally."

Counsel with conflicts of interest

When Virginia charged Walter Mickens Jr. with a 1992 murder, he did not have the money to hire a lawyer. A Virginia judge assigned his case to a lawyer who had earlier represented the victim. Virginia's attorney general's office argued that the lawyer had not represented the victim long enough to have denied the defendant a fair trial. A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ordered a new trial. (Mickens v. Taylor, 227 F.3d 203 (4th Cir. 2000), vacated & reh'g granted (Oct. 25, 2000).) But the court of appeals, sitting en banc, vacated that opinion and let the countdown to execution proceed. (Mickens v. Taylor, 240 F.3d 348 (4th Cir. 2001), cert. & stay granted, 69 U.S.L.W. 3670 (U.S. Apr. 16, 2001).)

With one day left before execution, the U.S. Supreme Court stayed Mickens's execution in order to review the case. (Mickens v. Taylor, 69 U.S.L.W. 3670 (U.S. Apr. 16, 2001).) The Court will now consider whether the lawyer's conflict of interest denied Mickens the right to effective counsel that the Sixth Amendment guarantees him. Of this case, Lawrence J. Fox, a former chairman of the American Bar Association's Ethics Committee, said: "The fact someone could be sent to his death on this basis shocked those of us who are concerned about professional ethics." (Brooke A. Masters & Charles Lane, High Court Halts Execution in Va.; Defense Lawyer's Role at Issue, WASH. POST, Apr. 17, 2001, at A1.) Observers expect the Supreme Court to issue its decision in its next term.

In a speech in April, Justice Ruth Bader Ginsburg issued a stinging indictment of the quality of lawyers available in death penalty cases, saying: "I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial." (Id.)

A federal right to DNA testing?

In a rape case that has implications for death penalty cases, a federal judge in Virginia ruled April 16 that felons have a constitutional right to DNA testing. (E.g., Brooke A. Masters, U.S. Judge Says Felons Entitled to DNA Tests: Decision Issued in Fairfax Rape Case, WASH. POST, Apr. 17, 2001, at A1. For prior history in the case, see Harvey v. Horan, 119 F. Supp. 2d 581 (E. Dist. Va. 2000) (denying motion to dismiss).) Virginia convicted James Harvey of rape in 1990 and he has been imprisoned ever since. When Harvey sought DNA testing to prove his innocence, Virginia refused. Harvey sued to get access to the evidence, and Judge Albert Bryan Jr. ruled that Harvey has a right to the DNA testing under the Fourteenth and Fifteenth Amendments. Judge Bryan wrote: "Denying the plaintiff access to potentially powerful exculpatory evidence would result in . . . a miscarriage of justice." (Masters, supra.) Access to DNA testing has become a focus of legislative efforts.

Executive branch evaluations

As of May 2001, the executive branch was also conducting evaluations of the death penalty. As with other such studies, these reviews should show that the federal death penalty system is deeply flawed. Whether or not they do will be a test of the Bush administration, as will the president's reactions to that evidence.

In September 2000, the U.S. Justice Department released a study showing widespread geographic and racial disparity in the application of the federal death penalty. (U.S. DEP'T OF JUSTICE, THE FEDERAL DEATH PENALTY SYSTEM: A STATISTICAL SURVEY (1988-2000) (2000).) The study found that nine U.S. attorney's offices accounted for 43 percent of requests to seek the death penalty. In contrast, in 40 of the nation's 94 districts, the U.S. attorneys never sought the death penalty.
The report found that since 1995, minorities have accounted for 80 percent of the 682 defendants who faced capital charges. Minorities account for 74 percent of those for whom U.S. attorneys have recommended authorizing the death penalty.
Regardless of where one stands on the death penalty, all Americans should agree that whether defendants die for committing a federal crime should not depend randomly on where they live or arbitrarily on the color of their skin.

The presidential response

President Clinton cited the Justice Department study when he stayed the execution of Juan Raul Garza, who was then the next inmate in the federal system scheduled for execution. On December 7, President Clinton stayed Garza's execution for six months, until this June, "to allow the Justice Department time to gather and properly analyze more information about racial and geographic disparities in the federal death penalty system." (Statement on the Decision to Stay the Execution of Juan Raul Garza, 36 WEEKLY COMP. PRES. DOC. 3023 (Dec. 7, 2000).) It is hard to disagree with President Clinton's conclusion: "Whether one supports the death penalty or opposes it, there should be no question that the gravity and finality of the penalty demand that we be certain that when it is imposed, it is imposed fairly." (Id. at 3024.)

President Clinton charged the Justice Department to review the data further, saying:

This Fall [2000], the Department of Justice released the results of a statistical survey of the federal death penalty. It found that minority defendants, and certain geographic districts, are disproportionately represented in federal death penalty prosecutions. As the Deputy Attorney General said at the time the survey was released, no one confronted with those statistics can help but be troubled by those disparities. We do not, however, fully understand what lies behind those statistics. The Attorney General has said that more information and a broader analysis are needed to better interpret the data we now have and to determine whether the disparities that are evident reflect any bias in our system. She has undertaken an effort to gather and analyze the relevant information, so than an appropriate decision can be made on the question of bias.
(Id.)

President Clinton said that he had "concluded that the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's continuing study. In this area there is no room for error." (Id.) As this is being written, Attorney General Ashcroft has not yet reported to President George W. Bush in response to President Clinton's request to the Justice Department. It's also impossible to know what President Bush's response will be to the mounting evidence on racial and geographic disparities.

Racial inequities

Further evidence of racial inequity became apparent on April 16, 2001, when researchers at the University of North Carolina School of Law released a comprehensive study of death penalty cases in North Carolina in the 1990s. (E.g., Fox Butterfield, Victims' Race Affects Decisions on Killers' Sentence, Study Finds, N.Y. TIMES, Apr. 20, 2001, at A10; Maurice Possley, Death Penalty Tied to Race in North Carolina Study, CHI. TRIB., Apr. 17, 2001, at N7.) That study found that the odds of a person being sentenced to death in North Carolina in the 1990s were more than three times greater if the victim was white than if the victim was African American.

The researchers examined 3,990 homicide cases from 1993 to 1997. When a death sentence was possible, the defendant received the death penalty 11.6 percent of the time when the state charged nonwhites with murdering whites, but only 6.1 percent of the time when the state charged whites with murdering whites, and only 4.7 percent of the time when the state charged nonwhites with murdering nonwhites.

"Sadly, this study shows that skin color still plays a major role in deciding who lives and who dies in our criminal justice system," said Professor Jack Boger, the main author of the study. (Id.)

Rethinking in the states

The states, as well as the federal government, are reexamining the death penalty. Led by Illinois, 17 states are actively considering moratoriums on the death penalty. A year ago, Illinois Governor George Ryan took the bold step of placing a moratorium on executions in his state. (For example, see Ken Armstrong & Steve Mills, Ryan Suspends Death Penalty; Illinois First State to Impose Moratorium on Executions, CHI. TRIB., Jan. 31, 2000, at 1C; "My Concern Is Saving Lives, Innocent Lives," CHI. TRIB., Jan. 31, 2000, at 8C.) He acknowledged that the system by which people were sentenced to death in Illinois was terribly flawed.
By the time Governor Ryan made his decision, Illinois had seen more exonerations of innocent persons than executions-13 death row inmates had been exonerated and 12 had been executed in Illinois since the reinstatement of the death penalty. Of the 13 persons found innocent, some were wrongfully convicted based on police or prosecutorial misconduct. Modern DNA testing played a role in another five exonerations. And in some cases, it was students from Northwestern University-individuals outside the criminal justice system-who played a key role in finding and presenting the evidence to secure the release of wrongfully condemned men.

Following his decision to place a moratorium on executions, Governor Ryan appointed a panel of distinguished prosecutors and defense lawyers, as well as civic and political leaders. That panel is charged with thoroughly reviewing the flaws in the administration of the death penalty in the state.


"Until I can be sure with moral certainty that no innocent man or woman is facing lethal injection," said Governor Ryan, "no one will meet that fate." ("My Concern Is Saving Lives, Innocent Lives," supra.) That is not too much to ask.

Questions of innocence

According to a study led by Columbia University Law Professor Jim Liebman, released last June, more than two out of three American death sentences reviewed by the courts are seriously flawed. Reviewing 4,578 appeals between 1973 and 1995, the report found that courts detected serious, reversible error in 68 percent-nearly 7 out of 10-capital sentences that were fully reviewed. (James Liebman, Jeffrey Fagan & Valerie West, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000); James S. Liebman, Jeffrey Fagan, Valerie West & Jonathan Lloyd, Habeas: Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1839 (2000).)

The study showed that high error rates exist across the country. More than 90 percent of the states that administer the death penalty have errors in the majority of their cases. Three-fifths of death penalty states have error rates of 70 percent or more. In the words of the study's authors, our system is "collapsing under the weight of its own mistakes." (Liebman, Fagan & West, supra, at 124.)

Federal legislation

Congress has also shown a change in its approach to the death penalty. Not so long ago, senators-Democrats and Republicans alike-competed with each other to trumpet the great numbers of death penalties in the legislation they advanced. Today, a number of bills to reform the death penalty process are receiving active consideration.

I believe that the death penalty should be abolished. In the last Congress, on November 10, 1999, I introduced the Federal Death Penalty Abolition Act of 1999, a bill to abolish the death penalty under federal law. Senator Carl Levin cosponsored the bill. Believing that we need to work toward the day when we can end the death penalty, I reintroduced the Act in January. (See S. 1917, 106th Cong. (1999); S. 191, 107th Cong. (2001).)

Legislative efforts advanced on other fronts as well during the last Congress. Large and growing support has organized around a bill that the ranking Democratic member of the Senate Judiciary Committee, Senator Pat Leahy, a former prosecutor, introduced on February 10, 2000-the Innocence Protection Act of 2000. I joined Senator Leahy at the press conference announcing the bill. Senators Daniel Akaka, Bob Kerrey, Carl Levin, and Daniel Patrick Moynihan also cosponsored the bill. The proposed Act was designed to reduce the risk of executing innocent persons by expanding access to DNA testing and adequate counsel, among other things. (See S. 2073, 106th Cong. (2000).)

On April 4, 2000, Congressman William Delahunt, also a former prosecutor, introduced the House companion bill, the Innocence Protection Act of 2000, H.R. 4167, 106th Cong. (2000). Fully 81 other members of Congress cosponsored that bill. In June 2000, Senator Leahy introduced a revised version of the Act. (S. 2690, 106th Cong. (2000).) A bipartisan group of 14 senators cosponsored that bill, including Senators Daniel Akaka, Barbara Boxer, Susan Collins, Chris Dodd, James Jeffords, Edward M. Kennedy, Bob Kerrey, Carl Levin, Barbara Mikulski, Daniel Patrick Moynihan, Gordon Smith, Robert Torricelli, Paul Wellstone, and me.

In March 2001, Senator Leahy introduced the Innocence Protection Act of 2001. (S. 486, 107th Cong. (2001).) Seventeen senators cosponsored the bill. On the same day, Congressman Delahunt introduced the House companion. (The Innocence Protection Act of 2001, H.R. 912, 107th Cong. (2001).) Fully 182 representatives cosponsored that bill. This legislation is the minimum that Congress should enact.

In February 2000, Congressman Jesse Jackson, Jr., introduced the Accuracy in Judicial Administration Act of 2000, (H.R. 3623, 106th Cong. (2000)) to provide a temporary moratorium on carrying out the death penalty to ensure that persons able to prove their innocence are not executed. That bill was cosponsored by nine other members of Congress, including Representatives Thomas Barrett, Bill Clay, Danny Davis, Sam Farr, Chaka Fattah, Sheila Jackson-Lee, Gregory Meeks, Eleanor Holmes Norton, and Janice Schakowsky. In April 2000, Jackson introduced a revised version. (H.R. 4162, 106th Cong. (2000).) Forty-four members of Congress cosponsored that bill. Congressman Jackson introduced the Act again in 2001. (H.R. 321, 107th Cong. (2001).)
On April 26, 2000, following Governor Ryan's example, I introduced the National Death Penalty Moratorium Act of 2000 (S. 2463, 106th Cong. (2000)) to institute a death penalty moratorium at both the federal and state levels. I suggest a national commission on the death penalty study its use and ensure that justice, fairness, and due process are implemented. Senators Barbara Boxer, Dick Durbin, Carl Levin, and Paul Wellstone cosponsored the bill. In September 2000, Congressman Jackson introduced the House companion bill. (The National Death Penalty Moratorium Act of 2000, H.R. 5237, 106th Cong. (2000).) Congressman Ciro Rodriguez cosponsored the bill. Again this year, along with Senators Jon Corzine, Carl Levin, Paul Wellstone, I introduced the National Death Penalty Moratorium Act of 2001, (S. 233, 107th Cong. (2001).) In March, Congressman Jackson introduced the House companion. (The National Death Penalty Moratorium Act of 2001, H.R. 1038, 107th Cong. (2001).) Representatives William Lacy Clay, Joseph Hoeffel, Sheila Jackson-Lee, and Ciro Rodriguez cosponsored the bill.

On September 14, 2000, along with Senators Barbara Boxer and Paul Wellstone, I introduced the Federal Death Penalty Moratorium Act of 2000, S. 3048, 106th Cong. (2000), which would apply the same idea just on the federal level. On September 21, 2000, Congressman Jackson introduced the House companion measure. (The Federal Death Penalty Moratorium Act of 2000, H.R. 5236, 106th Cong. (2000).) Congressman Ciro Rodriguez cosponsored that bill, as well.

On September 28, 2000, in response to Senator Leahy's Innocence Protection Act, Senator Hatch, the Chairman of the Judiciary Committee, introduced the Criminal Justice Integrity and Law Enforcement Assistance Act. (S. 3130, 106th Cong. (2000).) That bill would have, among other things, provided for postconviction DNA testing and facilitated the exchange by law enforcement agencies of DNA identification information relating to felony offenders. Twenty-eight senators, all Republicans, cosponsored the bill.

And in this Congress, also along the lines of Senator Leahy's Innocence Protection Act, on April 30, 2001, Senator Dianne Feinstein introduced S. 800, a bill to provide for, among other things, postconviction DNA testing and the establishment of a competent counsel grant program.

This profusion of bills relating to the death penalty signals a significant change in attitude in Congress. That 17 senators and 182 representatives have come together on the current version of the Innocence Protection Act indicates that sentiment is growing in Congress for action on this important issue.

The ABA's role

The bar has been a leader in calling for reform of the death penalty, and remains so. As early as February 1997, the American Bar Association adopted a resolution calling for a moratorium on executions until fairness could be ensured. (ABA Sec. of Ind'l Rights & Responsibilities, Sec. of Litig., Sec. of Tort & Ins. Practice, Comm'n on Mental & Physical Disability Law, Mass. Bar Ass'n, the Ass'n of the Bar of the City of New York & New York State Bar Ass'n, Report with Recommendations, No. 107, from ABA 1997 Midyear Meeting (approved by the ABA House of Delegates Feb. 3, 1997).) The ABA and its presidents have continued to press for justice and restraint in the system. The efforts of the bar encourage courts, executive branch officials, and legislators to see this important work done. I call on you to keep up the fight. I hope that together our efforts will soon bear fruit.


Russ Feingold is a U.S. Senator from Wisconsin. He serves on the Senate Judiciary Committee, where he is the ranking Democratic member of the Subcommittee on the Constitution, Federalism, and Property Rights.


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