Death Penalty on Trial

▪ 2003

by Andrew Rutherford

      Along with the report in 2002 that the number of executions carried out worldwide in 2001—3,048—was more than double the 1,457 known to have taken place in 2000 came the news that more than 90% of them had occurred in just four countries—China, Iran, Saudi Arabia, and the United States. This dramatic increase has been attributed to the Chinese government's “strike hard” anticrime campaign, during which 1,781 people were executed in only four months. Internationally, however, the trend has moved toward abolishing the death penalty. At the end of 2001, according to Amnesty International, 84 countries were retentionist, while 111 countries were abolitionist in law or practice—a considerable increase from the 63 at the end of 1981. In fact, every year since 1997 the United Nations Commission on Human Rights has adopted a resolution on the death penalty that calls on all retentionist states to, among other things, establish a moratorium on executions with a view to eventual abolition. Following the adoption of the resolution at the commission's annual session in Geneva in April 2001, however, 60 states—mostly African, Middle Eastern, and Asian countries but also the U.S.—issued a joint statement disassociating themselves from the resolution.

 In the U.S., 38 of the 50 states provide for the death penalty in law. (See Map—>.) Since January 1977—when Gary Gilmore became the first person to be executed after the Supreme Court's lifting of the moratorium it had imposed on the death penalty five years earlier—820 people have been executed in the country, 677 of them since 1991. During the past 25 years, though, as many as 100 persons have also been exonerated after having received a death sentence.

      Fueling questions regarding the possibility that innocent persons have been executed in the U.S. was a study published in 2002 by James Liebman and colleagues at Columbia University, New York City, that found that the overall rate of prejudicial error—an error so serious that it would normally require a new trial—in the American capital punishment system was 68%. The research also found that 82% of defendants whose capital judgments were overturned owing to serious error were given a sentence less than death after the errors were corrected on retrial, and a further 7% were found not to be guilty of a capital offense. The study thus claimed to have revealed “a death penalty system collapsing under the weight of its own mistakes.”

      In October 2001 Gerald Mitchell was executed by lethal injection for a murder he committed when he was 17. Mitchell was the 18th person in the U.S. to be executed during the modern era for a crime committed as a juvenile. His execution took place in spite of international pleas for clemency. Only seven countries are known to have put juvenile offenders to death since 1990. While Mitchell was only the 13th juvenile offender to have been executed worldwide since 1997, nine of these executions took place in the U.S.

      Similar pleas for clemency were also made for Alexander Williams, who had been scheduled to be executed in February 2002. Williams was 17 when, in 1986, he kidnapped, raped, and murdered Aleta Carol Bunch. He also had a history of childhood abuse and suffered from schizophrenia and paranoid delusions. The Georgia Board of Pardons and Paroles, citing the exceptional circumstances of the case, granted clemency. The question of whether the mentally ill should face the death penalty was raised again a month later by the highly publicized case of Andrea Yates, a Texas mother who had struggled with mental illness for a number of years before drowning her five children in a bathtub. Prosecutors in Houston uncharacteristically stopped short of asking for a death sentence, and the jury—consisting of four men and eight women—took just 35 minutes to decide on life imprisonment rather than the death penalty for Yates.

      In 1989 the Supreme Court decided in Penry v. Lynaugh that, since only two of the states with the death penalty explicitly outlawed execution of the mentally retarded, “there [was] insufficient evidence of a national consensus” for an Eighth Amendment argument that the practice amounted to “cruel and unusual punishment.” By accepting in 2002 the case of Daryl Atkins, who was an 18-year-old high-school dropout with an IQ of 59 when he abducted and murdered Eric Nesbitt, the court took the opportunity to reconsider this finding. In a landmark decision, the court held by a 6–3 majority that executing mentally retarded persons did indeed constitute cruel and unusual punishment.

      The issue of racial bias in the American capital punishment system was raised in a 2001 study undertaken by researchers at the University of North Carolina at Chapel Hill. The study found that of all homicide cases before the courts in North Carolina between 1993 and 1997, the odds of being sentenced to death increased three and a half times if the victim was white rather than black. In the U.S. whites account for approximately half of all murder victims, yet 83% of all capital cases involve white victims, and while during the modern era only 12 whites have been executed for murdering blacks, 170 black people have been put to death for murdering whites.

      In 2000 Illinois Gov. George Ryan declared an indefinite death penalty moratorium in his state after the release of 13 death row inmates whose convictions were flawed. He also set up a commission, which completed a two-year study of the death penalty in April 2002. While the commission did not go so far as to call for the abolition of capital punishment, it did propose measures such as reducing the number of crimes eligible for the death penalty from 20 to 5, improving the mechanism for appointing competent attorneys in capital cases, and eliminating the death penalty when convictions are based solely on the word of jailhouse informants. In 2002 Maryland Gov. Parris Glendening declared a moratorium in his state.

      Over the past 25 years, the international climate on the death penalty has changed dramatically. An estimated 50 countries abolished the death penalty for all offenses during this period, and a further 12 abolished it for all ordinary crimes. By contrast, only four abolitionist countries have reintroduced the death penalty since 1985, and one of these (Nepal) has since abolished it again, while two of the others (Gambia and Papua New Guinea) have not yet carried out any executions. The trend toward abolition continued in 2002: the Serbian parliament abolished the death penalty in February; the Cuban government applied a de facto moratorium on executions; and Taiwan and Kyrgyzstan took steps toward abolition. Furthermore, a decision of the U.K. Privy Council in March held that mandatory death penalty laws constituted “inhuman and degrading punishment or other treatment” and so violated the constitutions of Belize and six other Caribbean states.

      In the midst of this movement toward abolition, calls were still being made for capital punishment. In May 2002 outgoing Hungarian Prime Minister Viktor Orban, in response to a violent bank robbery in which eight people were killed, called for the country to reconsider its ban of the death penalty. In Russia the State Council and National Assembly of Dagestan approved an appeal to Pres. Vladimir Putin to reinstate the death penalty following a bombing during a World War II Victory Day parade that killed 42 people. In the U.S. the first federal executions in 38 years were carried out when terrorist bomber Timothy McVeigh and, a few days later, Juan Raul Garza died by lethal injection in June 2001.

      One leading law scholar, Roger Hood of the University of Oxford, concluded that while the pace for abolition has increased over the past 35 years, notably in Europe, any immediate prospects that retentionist countries are likely to change course seem remote. Antiterrorist proposals—including expansion of the death penalty—were made in several U.S. states following the events of Sept. 11, 2001, and overall the consequential international unease has made the apparent trend toward abolition highly problematic. In many regions of the globe, at least for the foreseeable future, the death penalty appears likely to remain an instrument of criminal policy.

Andrew Rutherford is a Professor of Law and Criminal Policy at the University of Southampton, Eng., and the author of Transforming Criminal Policy (1996).

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