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Jewish World Review Nov. 27, 2000 / 29 Mar-Cheshvan, 5761

Nat Hentoff

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Consumer Reports

Is capital punishment a deterrent? -- NOT ALL OPPONENTS of capital punishment speak with one voice. Some, like Justice Harry Blackmun, who supported the death penalty during most of his term on the Court, finally decided he would "no longer tinker with the machinery of death" because the ultimate punishment was so randomly applied. That is, some of those on death row had not received due process -- basic fairness -- in their trials, or in their appeals.

Others, such as the late Catholic cardinals Joseph Bernardin and John Cardinal O'Connor, were against capital punishment because they believed that to be pro-life, one must adhere to a consistent ethic of life -- being against abortion, euthanasia and capital punishment.

On the other hand, supporters of the death penalty often agree with George W. Bush and Al Gore. During their third presidential debate, both candidates were asked why they were for the death penalty. Both answered immediately: "It's a deterrence." Without capital punishment, homicides would increase.

Neither Bush nor Gore gave any factual evidence to support their position. They couldn't, because the great weight of evidence is against them.

In 1996, the Journal of Criminal Law and Criminology reported that a survey of 70 leading American criminologists found that over 80 percent of them said that the death penalty does not lower homicide rates.

More definitively, on Sept. 22 of this year, an extensively researched New York Times survey revealed that the 12 states without a death penalty have homicide rates below the national average.

As Richard Dieter, executive director of the Death Penalty Information Center points out, "The average murder rate per 100,000 population in 1998 among states with the death penalty was 6.2. However, the average murder rate among states without the death penalty was only 3.2. A look at neighboring death penalty and non-death-penalty states shows similar trends."

Furthermore, with regard to the uneven fairness of the trials, I have reported on death penalty cases for some 40 years, and it is an undeniable fact that since most of those on death row cannot afford experienced lawyers, many of those cases are handled by inexperienced court-appointed attorneys, some with little or no previous experience in capital cases.

As reporter Richard Perez-Pena noted in The New York Times (Feb. 12, 2000): "There are states like Texas, Alabama and Georgia, where the death penalty is frequently imposed, and there is no public defender system at all. Instead, judges appoint lawyers for poor defendants and set their compensation, often at low rates." Often very low rates, with minimal funds for investigators and forensic experts.

I interviewed the warden of a prison in Mississippi that had a number of prisoners on death row. I asked him whether it was true that three of them had no lawyers at all after their state appeals were lost. Their only chance to live was if a federal judge were to grant them a writ of habeas corpus so that their trials and sentences could be reviewed in a federal court.

The warden told me my information was accurate.

"Then what recourse do they have, since they have no lawyers?" I asked.

"Well," said the warden, "we have a prison library. There are law books there. They can figure out a way to try to get a writ of habeas corpus."

I asked him how much education those three prisoners had. He paused. "Well," he said, "they didn't have much schooling. But the law books are there."

In the National Journal (Feb. 12, 2000), Stuart Taylor -- former Supreme Court reporter for The New York Times and currently a writer for Legal Times -- quotes Gerald Kogan a former chief justice of Florida who has also been a prosecutor and trial judge. Says Kogan:

"There are several cases where I had grave doubts as to the guilt of a particular person" who was put to death.

Increasingly, men on death row -- some with execution only days and sometimes hours away -- are proved innocent and released because of DNA or the work of volunteer independent investigators.

With not many exceptions, the lawyers who lost the cases of these defendants were incompetent. And that's why Illinois governor George Ryan, who ran George W. Bush's presidential campaign in that state, has said: "Until I can be sure with moral certaintly that no innocent man or woman is facing a lethal injection, no one will meet that fate."

But George W. Bush and Al Gore automatically support this random method of execution because it "deters."

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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© 2000, NEA