Tuesday, January 07, 2003

Death penalty gains unusual defenders

A few highlights...but the whole thing is dang good reading.

NEW YORK — Robert Blecker sat quietly as other professors ticked off their reasons for opposing the death penalty: It's unfair to blacks. It doesn't really deter crime. Innocent people could be executed.

But Blecker, a professor at New York Law School, was having none of it. When it was his turn to speak at the recent death-penalty forum at John Jay College, he summed up his support for executions in three words: "Barbara Jo Brown."

Blecker then launched into a staccato description of the 11-year-old Louisiana girl's slaying in 1981, how she was abducted, raped and tortured by a man who later was executed. The story drew gasps from a crowd accustomed to dealing in legal theories and academic formulas. "We know evil when we see it, and it's past time that we start saying so," Blecker said later. "When it comes to the death penalty, too many in academia can't face that."

For years, professors and civil rights leaders have led the charge against the death penalty, raising questions about its fairness that caused two states to suspend executions. But now death-penalty supporters have found some unlikely allies: a small but growing number of professors and social scientists who are speaking out in favor of the ultimate sanction.

Challenging themes that have been the foundation of the anti-death penalty movement, about a dozen professors and social scientists have produced unprecedented research arguing that the penalty deters crime. They also are questioning studies that say it is racially biased, and they are attacking one of the anti-death penalty movement's most effective talking points: that more than 100 people released from death row during the past 30 years were "innocent."

The researchers say that only about a third of those released from death row could show they were innocent of murder, and that the rest were released for other reasons, often legal technicalities. The researchers say that those convicts' names have remained on the "innocent" list to exaggerate the case against the death penalty.

The pro-death penalty researchers are still a tiny minority in U.S. academia, which Blecker guesses is "99%-plus" against executions. But the researchers are changing the nature of the death-penalty debate.

...some death-penalty supporters, noting that more than two-thirds of Americans back capital punishment, say the research validates the views of a relatively silent majority.

...executions had been declining in the USA for years when states halted them in 1967, in anticipation of a Supreme Court ruling on whether death-penalty laws violated the constitutional ban on "cruel and unusual punishment."

The court banned executions in 1972, ruling that the death penalty was being imposed arbitrarily. But the court reinstated the penalty four years later, backing new laws that guided judges and juries in imposing death sentences. Since then, more than 800 killers have been executed in the USA.

...But how innocent are the "innocents"?

Ward Campbell, a deputy attorney general in California, said in a study last year that at least 68 of the 102 ex-death row inmates on the "innocents" list don't belong there. Campbell says some on the list had their convictions reversed because of prosecutors' errors or misconduct but seem certain to have committed the crimes of which they were convicted. Others avoided retrials or were acquitted because witnesses died, evidence was excluded for legal reasons, or because they were in prison for similar crimes.

In some cases, death sentences were overturned because the convict was an accomplice, not the killer. Campbell found that nine "innocents" were exonerated because courts said the evidence against them was valid but did not establish guilt beyond a "reasonable doubt."

Eight of those on the list were not actually on death row when they were exonerated; two others never received a death sentence, Campbell said. In more than a dozen cases, death sentences were overturned only because later Supreme Court rulings invalidated a state's death-penalty statute.

For Campbell, a recent addition to the list shows the problem with its standards: Larry Osborne was convicted of breaking into a Louisville couple's home in 1997 and killing them. He won a new trial because the conviction was based in part on grand jury testimony from an accomplice who died before Osborne's trial. An appeals court said the testimony should not have been admitted as evidence because Osborne's lawyer could not cross-examine the dead witness. Osborne was acquitted in a second trial. He made the "innocents" list in August.

Dieter says convicts whose sentences have been overturned "truly are innocent, in the legal sense." A spokesman for Sen. Patrick Leahy, D-Vt., sponsor of a bill aimed at eliminating wrongful convictions, says that "quibbling over numbers" misses the point.

"Even the staunchest defenders of the status quo must admit that ... innocent people have been sent to death row," Leahy spokesman David Carle says.

Pro-death penalty professors say the number of innocents does matter.

"The idea that 100 innocent people have just missed execution has undermined the public's confidence" in the death penalty, says Barry Latzer, a political scientist at John Jay College. "If it's substantially fewer, it's not nearly as powerful a story."

Latzer and his colleagues are challenging death-penalty foes on other fronts as well.

John McAdams, a political science professor at Marquette University in Milwaukee, acknowledges that African-Americans appear to be overrepresented on death row, where they account for about 42% of the prisoners, compared with about 12% of the U.S. population. (Since 1977, 57% of those executed have been white; 35% have been black.)

McAdams notes the widely held belief that black defendants are more likely to receive the death penalty than whites convicted in similar slayings. But he says that doesn't take into account that blacks make up nearly 50% of all murder victims, and that all but a few are killed by other blacks. Blacks who kill blacks, he argues, are far less likely to get the death penalty than whites, blacks or Hispanics who kill whites.

"Why are the lives of black victims less valued?" McAdams asks. "There's a subtle kind of racism going on here, and it's got to do with the victims of crime, not how we treat the perpetrators." He realizes that his analysis has a provocative implication: that more black killers should be executed. He favors "more executions generally."

But fellow death-penalty supporter Blecker says that the death penalty should be reserved for the "worst of the worst, the ones almost everyone can agree are worthy."