Democratic Party of Evanston

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Justice and the Death Penalty
by Kelly Grotke

Justice Thurgood Marshall believed in the power of well-reasoned, informed argument to combat the regressive forces of ignorance and blind assertion. And he also knew that ensuring justice and fairness was no easy matter, and that the road up from barbarism was indeed a long one. He was an NAACP lawyer in the South during the 1950's, after all. When the Supreme Court halted capital punishment nationwide in 1972 (Furman v. Georgia, 408 US 238), he wrote that, "assuming all knowledge of the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand."

So how far have we traveled in the 28 years since then? Illinois has a moratorium, thanks to Gov. Ryan. That was the right thing to do, and it is to Ryan's credit as a supporter of the death penalty that he recognizes the magnitude of the abuses. But we've still got a long way to go, and what's worse, we've been here before.

First, there is the question of whether innocent people have been executed. Fifty-seven percent of Texans think so. Gov. Bush claims he is "confident…that people who have been put to death have been guilty of the crime charged and have had full access to the courts." Yet the MacArthur Justice Center has chronicled several cases of possible wrongful executions, some in Texas. The recent execution of Gary Graham brought this problem to national attention.

There is also the issue of access to adequate legal representation. Federal funding for defense of the poor in capital cases was absolutely gutted in the mid-90's. And in Alabama, for example, defense lawyers are paid by law only $1,000 for out-of-court expenses, $600 for postconviction proceedings, and often have no experience with capital cases (the intricate habeas corpus regulations make this, frankly, a matter of life and death). That a defense lawyer might fall asleep, be intoxicated, or be otherwise incompetent or incapable of presenting an adequate defense is apparently not perceived to be a problem in a number of states. The Columbia University study run by Prof. James Liebman showed that two-thirds of capital convictions were overturned on appeal for issues ranging from incompetent defense lawyers to prosecutorial misconduct. It didn't answer the question of whether innocent people have already been put to death (that wasn't the aim of the study), but it does give reason for very serious concern about the current state of capital punishment.

Then there is the issue of racial or other bias, which was also considered in 1972. The Justice Department is studying this now in federal cases, where 17 of the 21 federal death row inmates are minorities. As Justice Douglas wrote in the Furman case, "it would seem to be incontestable that the death penalty inflicted on one defendant is 'unusual' if it discriminates against him by reason of his race, religion, wealth, social position or class, or if it imposed under a procedure that gives room for the play of such prejudices." In other words, it would violate the Eighth Amendment of the Constitution. And there is politics. Support for the death penalty is still strong. Bush and Gore are both supporters of the death penalty. Bush, who mocked Carla Faye Tucker's plea for clemency in a magazine interview, seems a lost cause. He refuses to face the real and abhorrent ugliness exhibited again and again by the capital punishment system, which makes his self-proclaimed "compassion" hypocritical at best. Gore says he is concerned about wrongful convictions, but hasn't gone further than that yet, despite efforts by a number of Democrats (including Reps. Jackson & Schakowsky) to pass legislation addressing some of the current abuses and despite the American Bar Association's call for a national moratorium on the basis of "gross injustice" in the application of the death penalty. The NAACP also wants a moratorium. It has been, and continues to be, a long, hard road. Marshall thought that ignorance of the facts necessary for making informed judgments explained popular support for the death penalty. I hope he was right, since that would be easier to address than indifference.