The Leadership Conference on Civil and Human Rights

In recent months, developments in courts and legislatures across the country have re-ignited the national debate on the constitutionality, wisdom and general fairness of the application of the death penalty. For the first time in more than 30 years, there is momentum on many fronts for a re-examination of the rules and assumptions that underlie capital punishment in the United States.

In two landmark decisions this term, the Supreme Court revisited prior rulings regarding the constitutional parameters of our nation's capital punishment system.

First, in one of the most important death penalty cases to come to the Supreme Court in the last quarter century, the Supreme Court held, in Atkins v. Virginia, that the Eighth Amendment's prohibition against cruel and unusual punishment bars the execution of mentally retarded individuals.

"This consensus unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penalogical purposes served by the death penalty," Justice John Paul Stevens wrote for himself and Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. Justices Rehnquist, Scalia and Thomas dissented.

In this case, the defendant, Daryl Atkins, who has an IQ of 59, was convicted in 1996 of killing an Air Force enlisted man. In challenging his death sentence, Atkins argued before the Virginia Supreme Court that "he is mentally retarded and thus cannot be sentenced to death." The majority of the Virginia court rejected this contention, relying on the U.S. Supreme Court's 1989 holding in Penry v. Lynaugh, 492 U.S. 302 (1989), which upheld the practice of executing persons who are mentally retarded.

In Atkins, however, the Supreme Court reached a different result than in Penry, reasoning that since 1989, a national consensus has developed against executing mentally retarded inmates. Therefore, the Court said, the practice could now be understood as violating the "evolving standards of decency that mark the progress of a maturing society"—the test set by the Supreme Court for determining if a punishment violates the 8th Amendment's prohibition on "cruel and unusual punishment." At the time that Penry was decided, in 1989, only two states that authorized the death penalty prohibited the execution of persons who are mentally retarded. As of the date of the Atkins decision, 18 of the 38 states that have capital punishment prohibited executing persons who are mentally retarded. In his opinion for the Court, Justice Stevens reasoned that "[i]t s not so much the number of these states that is significant, but the consistency of the direction of the change."

The Supreme Court's ruling will immediately affect the 20 states that allow executions of people who are mentally retarded. Experts estimate that there are approximately 200 inmates on death row in America today who are mentally retarded. Many of these individuals will now be expected to petition the courts to convert their sentences to life in prison.

Wayne Smith, Executive Director of The Justice Project, an organization that seeks the reform of the criminal justice system and a new member of the Leadership Conference on Civil Rights, said that the Atkins decision "reflects a growing national concern that the administration of the death penalty is unfair. This decision comes at a time when there is growing agreement among death penalty proponents and opponents alike that the capital punishment system is broken."

Many death penalty opponents see this decision as the first step toward further reforms, including a revisiting of the question of whether executing people who were juveniles when they committed their crime is consistent with our current constitutional norms. There are also signs that some members of the Supreme Court are ready to take up this question. On July 18, 2002, Justice Stevens addressed the issue of juveniles and the death penalty at the Judicial Conference for the United States Court of Appeals for the Ninth Circuit. Justice Stevens predicted that the juvenile death penalty would be the "next area for debate" and that the United States is "out of step with the views of most countries in the Western world." Stevens also said that the public was growing more skeptical of the death penalty's deterrent effect and more aware of the possibility that innocent people might be executed. In addition, on August 30, 2002, Stevens, along with Justices Ruth Bader Ginsburg and Stephen Breyer, dissented from an order declining to stay an execution of a juvenile offender, urging the Court to reconsider allowing juvenile offenders to be put to death. Currently there are approximately 80 persons on death row in the United States who committed their crimes while juveniles.

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In a second closely watched decision released June 24, the Supreme Court invalidated Arizona's death penalty statute, holding that by allowing a judge, rather than a jury, to find facts necessary for the imposition of the death penalty, the statute violated the defendant's 6th Amendment right to a trial by jury.

The ruling, in Ring v. Arizona, overturns death penalty laws in five states—Arizona, Idaho, Montana, Colorado and Nebraska—calling into question whether 168 death row inmates in those states will be put to death. The ruling could also affect some or all death sentences in four other states, including Florida, where 370 inmates await execution. Nationwide, approximately 3,700 people await execution for crimes committed in the 38 states that allow the death penalty.

The majority opinion in Ring was written by Justice Ruth Bader Ginsburg, and was joined by an unusual alliance of conservative and liberal justices: Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas. Justice Stephen Breyer wrote a separate opinion in which he agreed with the outcome.

Timothy Ring, the defendant in the Arizona case, was found guilty of the 1994 killing of an armored van driver in Phoenix. Under the Arizona law in question, once a jury determines that the defendant is guilty of a crime for which death is a possible sentence (a so-called "capital crime"), the judge decides whether there are aggravating circumstances present that justify a death sentence. Such circumstances include whether a murder was especially heinous, cruel or depraved and whether it was committed for monetary gain. In Ring's case, after the jury found Ring guilty of capital murder, the judge determined that there was an aggravating circumstance in the case and sentenced Ring to death.

The Supreme Court held Arizona's sentencing scheme unconstitutional and overturned its 1990 ruling in Walton v. Arizona, 497 U.S. 639, which had upheld Arizona's capital sentencing structure. In Ring the court concluded that its Sixth Amendment jurisprudence did not allow a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.

This decision not only has profound implications for the hundreds of inmates currently on death row who had their sentences determined by judges, but will also likely significantly reduce the number of persons sentenced to death in the future. James S. Liebman, a law professor at Columbia University, told the Washington Post that, "[t]here is quite general agreement that over time and over geography, the likelihood of getting a death sentence is greater from a judge than from a jury." The Post has also quoted Stephen B. Bright of the Southern Center for Human Rights, who has collected statistics from Alabama, as noting that his studies have shown that in Alabama, "you have 83 overrides [of jury verdicts by judges] from life to death and only seven from death to life."

The LCCREF/LCCR publication "Justice on Trial" recommends the suspension of the death penalty, citing:

"As currently implemented, capital punishment is a racist undertaking. The decision of who will live and who will die depends, in significant measure, on the race of the defendant and the race of the victim. This is due both to the flawed procedures such as the appointment of incompetent lawyers for indigent defendants, as well as to racial attitudes and stereotypes that cannot be easily overcome."

In 1972, the Supreme Court ruled that the nation's death penalty laws had become too "arbitrary and capricious" and imposed a moratorium on capital punishment. This meant that 600 death sentences in dozens of states were changed to life sentences. However, four years later, in its 1976 decision in Furman v. Georgia, the Court reopened the path for executions, accepting new death penalty laws that supposedly eliminated arbitrariness, racial bias and class discrimination.

While the Supreme Court has wrestled with rethinking the constitutional parameters of state death penalty schemes, governors and state legislators across the country have been impelled by the increasing availability of DNA evidence and by private investigators of death sentences to examine how susceptible their systems are to error. They have not liked what they have found.

In March 2000, Governor George Ryan of Illinois ordered a moratorium on executions after 13 death row inmates were found to have been wrongfully convicted by the state's justice system. After declaring the moratorium, Ryan, a death penalty supporter, established a commission to examine the way that the death penalty is carried out in Illinois and to make recommendations for its improved administration.

The Ryan Commission's final report, released on April 15, 2002, includes 85 recommendations for reform in the areas of investigations, eligibility for the death penalty, prosecutorial discretion and trial practice. Most significantly, the report calls for the videotaping of all interrogations of capital suspects, reducing the number of crimes that create death eligibility, and requiring that the trial judge concur in any death recommendation made by a sentencing jury.

The report also calls for significant reform in the use of police line-up identifications, recognizing the increasing body of scientific research that calls into question the reliability of line-up procedures currently widely used by prosecutors. The commission recommends that any prosecutorial decision to charge a death eligible offense be confirmed by an independent state panel. The commission also has proposed enhanced training of trial lawyers and judges, intensified scrutiny of the testimony of jail-house informants, and data collection that will allow the state to track whether the penalty is being imposed fairly.

The Ryan Commission's recommendations are the first steps on a long road to improving the fairness and reliability of capital punishment in Illinois and across the country. However, as the report makes clear, "no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death." It is that lack of a guarantee that poses the most difficult dilemma for supporters of the ultimate punishment.

On May 9, 2002, Maryland Gov. Parris Glendening (D) became the second pro-death penalty governor in the country to declare a moratorium on executions in his state. Governor Glendening stated that the moratorium would stay in effect until a University of Maryland study on racial and geographic bias in death sentences is completed and the state legislature can review and debate its results. This report is due sometime this fall.

Governor Glendening's declaration came moments after he suspended the execution of Wesley Eugene Baker, 44, who was scheduled to die by lethal injection. Maryland's Lieutenant Governor Kathleen Kennedy Townsend, also a death penalty supporter, advocated for the moratorium. She argued that to execute Mr. Baker without knowing the results of the University of Maryland study would be wrong. While the Illinois moratorium and the Ryan Commission's report re-ignited the national debate on capital punishment, Maryland is the first state to focus explicitly on the concern of racial bias in the death penalty system. Of the 13 prisoners in Maryland currently on death row, 9 are African American and 12 were convicted of murdering White victims.

In addition to these executive actions, the issue of death penalty fairness is also winding its way through the state and federal courts. In New York, the Court of Appeals is currently considering a constitutional challenge to the state's death penalty statute. Also, a federal district court judge in Vermont has ruled the federal death penalty statute unconstitutional, and a federal judge in New York has recently stated that he is poised to do so.

On the legislative front, legislatures in New Hampshire and Nebraska have recently passed bills to suspend or abolish the death penalty, though the respective states' governors' vetoed each. Across the country, municipalities have enacted at least 70 non-binding proposals for moratoriums.

One troubling statistic concerns the guilt of those condemned to death. In April 2002, Roy Krone became the 100th person to have his death penalty conviction overturned since 1973. These inmates were exonerated either by new scientific evidence (generally DNA evidence) or set free by revelations of mistakes made during their trials, proving their innocence.

In August 2002, Eddie Joe Lloyd became the 110th convicted person in the United States to be exonerated by post-conviction DNA testing, according to the Innocence Project at the Benjamin N. Cardozo School of Law. Lloyd had been sentenced to life in prison in 1985 based on a taped confession that was taken while he was in a mental hospital. At the time of Lloyd's conviction and sentencing to life in prison, the judge—Wayne County Circuit Court Judge Leonard Townsend—stated that "the sentence that the statute requires is inadequate. The only justifiable sentence, I would say, would be termination by extreme constriction." After his release, Lloyd stated that he was thankful that Michigan was one of 12 states without capital punishment.

In response to the growing concern about innocent persons being sentenced to death, in February 2000, Sen. Patrick J. Leahy, D-Vt., introduced the Innocence Protection Act (IPA), which seeks to improve the administration of justice by ensuring the availability of post-conviction DNA testing in appropriate cases; currently, many defendants are denied the opportunity for testing or are prevented from using the resulting evidence in their defense. In addition, the bill would encourage states to establish standards for the appointment of legal counsel for defendants facing the death penalty. Proponents of the bill argue that the interests of all are served if capital defendants have access to evidence that may establish innocence and if they are represented by competent lawyers.

Currently, the House version of the IPA (H.R. 912) has 232 cosponsors, including 171 Democrats and 61 Republicans. While this bill will not fix every problem in the administration of the death penalty, supporters argue that it will go a long way toward improving the fairness and reliability of capital trials, and in so doing will help restore confidence in the integrity of our criminal justice system.

Three men who were wrongly convicted of capital crimes were present at the Senate Judiciary Hearing on the IPA, held on June 18, 2002: Ray Krone, William Anderson and Kirk Bloodsworth. Each was ultimately exonerated through the use of DNA evidence. Obtaining the evidence and exonerations took 16 years in the case of Anderson, 10 for Krone and nine for Bloodsworth. Without access to DNA evidence—which these men had to fight to obtain, but would be guaranteed with passage of the Innocence Protection Act—these men would have been put to death for crimes they did not commit.

While some supporters of the IPA are opposed to the death penalty and others are in favor of its continued use, all agree that this bill is a necessary step. As Representative William Delahunt, D-Mass., testified in the Senate hearing, "this bill is not about the death penalty. It's about the quality of justice in America."

"The interests of all Americans are served if capital defendants have access to evidence that may establish innocence and if they are represented by competent counsel," noted Wade Henderson, LCCR Executive Director, in a June 2002 letter to Congress in support of the Innocence Protection Act. LCCR has a longstanding policy in opposition to the death penalty and has supported a federal moratorium on capital punishment. Nevertheless, Mr. Henderson stated that the Innocence Protection Act would "go a long way toward improving the fairness and reliability of capital trials, and in so doing will help restore confidence in the integrity of our criminal justice system."

In addition, Senators Russell Feingold ,D-Wis., and Jon Corzine, D-N.J., and Rep. Jesse Jackson, D-Ill., have introduced the National Death Penalty Moratorium Act of 2001 which would establish a national commission on the death penalty and prohibit the federal government from carrying out the death penalty until Congress considers the final findings and recommendations of this commission.