Death penalty changes spur optimism

By Gloria Rubac

Dozens of people arrived in a long car caravan with an escort of police cars, red and blue lights whirling. A bus had been reserved. Whole families celebrated, while cameras flashed to capture the historic moment.

The scene could have been photographed a century ago at a lynching in the Old South. But it took place on Jan. 7, as the state of Texas executed Kenneth Mosley at the Walls Unit in Huntsville. This legal lynching of a Black man was the first Texas execution of 2010 and the state’s 448th since 1982.

Earlier in the day, Ohio also executed an African-American man, Vernon Lamont Smith. Then just 20 minutes after Texas pronounced Mosley’s death, Louisiana State Penitentiary Warden Burl Cain announced that Gerald Bordelon, a man who had given up his appeals, was dead. This was Louisiana’s first execution since 2002; no others are scheduled.

As a new year begins, it is important to know that, even though the executions continue, there are many changes in the U.S. use of the death penalty.

“The annual number of death sentences in the U.S. has dropped for seven straight years and is 60 percent less than in the 1990s,” said Richard Dieter, the Death Penalty Information Center’s executive director, in a press release. “In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it’s worth keeping. This entire decade has been marked by a declining use of the death penalty.” There were 106 death sentences in 2009, compared with a high of 328 in 1994. (www.deathpenaltyinfo.org)

The decline in people being sentenced to death was particularly noteworthy in Texas and Virginia, the two leading states in carrying out executions. During the 1990s Texas averaged 34 death sentences per year and Virginia averaged six. This year Texas sentenced nine people to death and Virginia only one. Houston’s Harris County has executed 112 people — more than any state except Texas — yet no one was sentenced to death there for the second straight year.

Due to the economic crisis, as many as 11 states are considering eliminating the death penalty in order to cut costs.

New Mexico became the 15th state to abolish the death penalty. Governor Bill Richardson observed that the cost of the death penalty was “a valid reason [for repeal] in this era of austerity and tight budgets.” Eleven states considered legislation in 2009 to eliminate capital punishment; the cost of the death penalty was a large part of the debates.

One way to save hundreds of millions of dollars every year is to end the very expensive and wasteful death penalty and use those millions for job programs, education and health care. Every cost study in the U.S. shows that the death penalty is far more costly than life in prison.

Almost all recent executions have been in just one region of the country — the South — and most of those have been in one state — Texas. The death penalty without execution is a very expensive form of life without parole.

In October, the American Law Institute, made up of 4,000 judges, lawyers and law professors, made a decision that New York Times writer Adam Liptak said “represents a tectonic shift in legal theory.” (Jan. 4) The ALI had created the intellectual framework for the death penalty in 1962 to make the death penalty less arbitrary. The Supreme Court adopted their legal framework when it reinstituted capital punishment in 1976. Now the institute has abandoned the structure it created because it states the capital justice system in the U.S. is irretrievably broken. As ALI member and Rutgers law professor Roger S. Clark put it, “What this does is pull the whole intellectual underpinnings for the death penalty.”

Some important anti-death penalty developments

Innocence and the use of life without parole sentences are two reasons that death sentences are down.

According to the Innocence Project, a legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, 249 people in 34 states have been exonerated by DNA evidence; 150 of them are African Americans. Seventeen of them served time on death row.

Since 1973, 139 people in 26 states have been released from death row given evidence of innocence. The highest numbers are in Florida, Illinois and Texas, according to the DPIC. More than half are African American.

In an important development on the issue of innocence in 2009, the U.S. Supreme Court granted a stay of execution and an extraordinary evidentiary hearing to Troy Davis of Georgia. Davis has always maintained his innocence, and a movement to support him, led by his sister Martina Davis-Correia, has garnered support for Davis and forced the Supreme Court to reconsider his case.

In Texas a prominent forensic scientist commissioned by a state legislative panel reported that arson evidence used to convict and sentence Cameron Todd Willingham to death failed to show any crime had been committed. Willingham was executed in 2004. Dr. Craig Beyler’s report reached the same conclusions as leading forensic scientists commissioned by the Chicago Tribune and the Innocence Project in New York.

As reported by New Yorker magazine, the jury at Willingham’s trial was misled by faulty evidence to believe he had set the fire that resulted in the death of his three children. One day before the presentation of Beyler’s report to the Texas Forensic Science Commission, Gov. Rick Perry replaced the chair and two other members of the commission, and the investigation into the possible wrongful execution of Willingham was put on hold.

This commission has finally scheduled a meeting for the end of January in the small town of Harlingen in the Rio Grande Valley, far from Houston, Dallas and Austin where it had formerly held its meetings. But Texas activists are already making plans to be there and demand a full hearing on Willingham’s case and the subsequent cover-up by the governor.

Each of the 35 states that has capital punishment on its books also has a sentence of life without parole. While many legal experts state that LWOP sentences are one reason that death sentences are down, others disagree.

Njeri Shakur, an activist with the Texas Death Penalty Abolition Movement, says, “Too many innocent people are being released from general population as well as off death row. This publicity makes juries think twice because they don’t want to be labeled as sending an innocent person to execution. With all the news about Todd Willingham, those on his jury are now responsible for his wrongful death. And Gov. Rick Perry should now be held accountable. Because of innocence, the end of the death penalty is nearing.”

Even in Houston, former District Attorney Vic Weisner said that jury members are reluctant to wrongfully sentence a defendant to death because they don’t want their names or photos in the news for causing an innocent person to die.

Life without parole has been advocated by some in the anti-death penalty movement as an acceptable alternative to executions. Others adamantly oppose anyone being sentenced to this cruel punishment.

The Sentencing Project, a research and advocacy organization for prison reform, released a new study which documents the continued increase in the number of people in prisons serving these sentences.

They found that of the lifers in prison, one in four (26.3 percent) is serving a sentence of life without parole; this increased from one in six (17.8 percent) in 1992. In six states — Illinois, Iowa, Louisiana, Maine, Pennsylvania and South Dakota — all life sentences are imposed without the possibility of parole. Seven states — Alabama, California, Florida, Illinois, Louisiana, Michigan and Pennsylvania — have more than 1,000 prisoners each serving sentences of life without parole.

Activist Marta Glass, a commentator with the Prison Show on Pacifica radio in Houston, says, “These LWOP sentences are another form of a death sentence. You just cannot morally sentence an 18-year-old kid to prison and deny him the hope of ever getting out. This is cruel and inhumane.”

In the case of political prisoner Mumia Abu-Jamal, 2009 was not a good year. The Supreme Court refused to hear his appeal and didn’t even give a reason. The appeal was based on the Supreme Court’s own 1986 ruling in the Batson decision, which says that the district attorneys can’t strike potential jurors based on their race. At Abu-Jamal’s trial, the district attorney used 11 of his 15 strikes to exclude Black people. In response to the court’s ruling, Abu-Jamal said, “It shows you that precedent means nothing, that law is politics by other means.”

Abu-Jamal’s supporters have undertaken a campaign to have the U.S. Justice Department review his case. In November they delivered 25,000 letters from around the world calling on U.S. Attorney General Eric Holder to conduct a civil rights investigation into Abu-Jamal’s case.

“[The year] 2009 was a good year for the anti-death penalty movement in general. We had big ups and some big downs also, but we are seeing a trend that the death penalty is going out of favor. We are seeing that light at the end of the tunnel getting brighter and are redoubling our efforts to bring about an end to this racist tool of the ruling class,” reported Shakur.

“We will see abolition, and through struggle we hope we can make it sooner rather than later.”

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