Courting Capital Punishment: With Little Public Opposition, the Machinery of Death Is Shifting into Overdrive
Cole, David, The Nation
Opponents of the death penalty had to cross the Atlantic Ocean for good news in 1995, and 1996 doesn't look any more promising. Last June, South Africa's highest court unanimously declared the death penalty unconstitutional, making South Africa the forty-second country to abolish capital punishment since 1976.
Nineteen seventy-six was when our own Supreme Court revived the death penalty, a scant four years after declaring it unconstitutional; it changed its mind when the states created new sentencing procedures. Last year, the United States executed fifty-six people, nearly double the number for the prior year, and six more than the total number executed from 1976 to 1985. What Justice Harry Blackmun called "the machinery of death" is in high gear. At the same time, 1995 saw Congress cut off all funding to the legal resource centers that have represented most of the nation's 3,000-plus death-row inmates.
We're not alone in retaining the death penalty, of course--China, Iraq, Libya, Uganda and Zaire, to name a few, still stand with us. But South Africa no longer does.
In light of this state of affairs, perhaps it should not be surprising that the most eloquent death-penalty brief that the NAACP Legal Defense and Educational Fund wrote last year was filed in Johannesburg, not Washington. The brief, written with Human Rights Watch, argued that the United States' experience with capital punishment was itself the best argument against its constitutionality in South Africa.
On the one hand, the brief noted, the U.S. Supreme Court has insisted that the death penalty be imposed in an individualized manner, with plenty of room for discretion and mercy. On the other hand, the Court has also stated that capital punishment must be applied consistently if it is to be fair. The difficulty is that consistency and individualized discretion are at loggerheads, particularly in a society marked by class and race inequality. The only way to make the system more consistent is to remove the discretion, but the discretion is necessary to permit tailoring to individual circumstances. As the Supreme Court has acknowledged, "The power to be lenient is the power to discriminate."
At the same time, the L.D.F. brief argued, as a society we have been able to tolerate only a limited number of executions--in 1995 there were more than 20,000 murders in the United States, but only fifty-six executions. Yet no one has ever identified criteria that could narrow thousands of capital crimes down to fifty-six capital punishments without being arbitrary.
Our Supreme Court is not moved by such arguments. In 1976, the Court permitted the death penalty to go forward on the presumption that it could be administered in a rational, consistent and fair manner. Nothing in the twenty years since has offered any basis for confidence in that presumption, yet the Court retains its blind faith. Consider just a few cases from last year:
[sections]Texas's Jesse Jacobs was the first man executed in the United States in 1995. At his trial, the prosecution successfully argued that Jacobs was the triggerman in a brutal murder. When it turned around to try his co-defendant, however, the state argued that it had changed its mind, that Jacobs did not do the shooting and did not even know his co-defendant had a gun. Despite protests from sources as high up as the Vatican, Jacobs was executed--for an act the state admitted he did not commit.
[sections]Leon Moser was a deeply disturbed, suicidal man convicted of killing his wife and children after being released from a mental institution. He refused to participate in his defense and declined to take part in appeals. On the day of Moser's scheduled execution, a federal judge ordered Pennsylvania prison authorities to produce him for a hearing to determine whether he was mentally competent to be executed. When informed that Moser was being held hundreds of miles away, the judge gave the state until the next morning to bring him to court, and stayed his execution. …