Dec. 2

TEXAS:

The long green mile of the death penalty

Justice William Brennan was wrong -- at least in his assessment of public
revulsion toward the death penalty.

"Its rejection by contemporary society is virtually total," Brennan wrote
in 1972 when the Supreme Court said capital sentencing schemes in Georgia
and Texas allowed for such arbitrary application of the ultimate
punishment that it was unconstitutionally unfair.

But the nation didn't reject capital punishment once and for all. Just 4
years later, the court said reworked death penalty laws in those same
states met the Eighth Amendment's dictate that punishment not be "cruel
and unusual."

And since then, 1,099 inmates have been executed, including 3 convicted of
federal crimes, according to the Death Penalty Information Center. Texas
has executed 405 men and women, starting with Charlie Brooks Jr. 25 years
ago.

Brooks was convicted of using the ruse of a test drive to kidnap auto
mechanic David P. Gregory from Danny Sides Used Cars on East Lancaster in
Fort Worth and then shoot him in the head at a motel.

On Dec. 7, 1982, Brooks became the 1st recipient of lethal injection --
the 1st of 929 across the country.

The last, so far, was Michael Richard, executed by Texas on Sept. 25.

Richard was convicted of raping and fatally shooting Marguerite Lucille
Dixon at her Hockley home and then stealing 2 TVs and a van. He denied
that the killing was intentional.

But what drew national dismay to Richard's execution was the callous
disregard of Sharon Keller, presiding judge of the Texas Court of Criminal
Appeals. She refused to keep the court open past 5 p.m. so Richard's
lawyers could file a last-minute appeal after the U.S. Supreme Court
agreed to decide the constitutionality of the drug mixture generally used
in lethal injection.

Richard's has been the only sentence carried out since the justices agreed
to consider the claims by two Kentucky Death Row inmates that the 3-drug
concoction, as administered by 36 states, carries enough risk of pain and
suffering that it is "cruel and unusual." (New Jersey uses a different
drug protocol; Nebraska uses the electric chair.)

For the 1st time since the mid-1970s, a nationwide death penalty
moratorium seems to have taken effect. And so has more soul-searching
about the purpose, the effectiveness, the basic justice of the manner in
which states take a life for a life -- or even, as some now want, for
crimes short of killing.

So maybe Brennan was correct when he wrote, "The evolution of this
punishment evidences not that it is an inevitable part of the American
scene, but that it has proved progressively more troublesome to the
national conscience."

Execution's evolution

Writing in the 1958 case of Trop v. Dulles, Chief Justice Earl Warren
examined the notion that a punishment disproportionate to the crime would
be "cruel and unusual." The case involved an Army private who had been
stripped of his U.S. citizenship after being court-martialed for wartime
desertion, but Warren swept the most severe penalty into the discussion.

"The basic concept underlying the Eighth Amendment is nothing less than
the dignity of man. While the State has the power to punish, the Amendment
stands to assure that this power be exercised within the limits of
civilized standards," Warren wrote.

"The Amendment," he said, "must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society."

The "evolving standards of decency" test, as applied to the death penalty,
infuriates those such as Justice Antonin Scalia who believe the
Constitution means what it meant when it was written, when some
punishments were acceptable that no longer are.

But the concept of "cruel and unusual punishments" is so broad that the
court has spent decades trying to define what it encompasses.

The justices have ruled that states can't impose the death penalty for
rape of an adult woman who isn't killed (1977); for insane defendants
(1986); for defendants who were juveniles at the time of the crime (1988,
2005); and for mentally retarded defendants (2002).

The court has sent cases back to Texas because of mistakes in jury
selection or to refine procedures that didn't allow jurors to fully
consider evidence that might warrant a life prison sentence instead of
death.

Although the Supreme Court has narrowed the application of capital
punishment, a majority of justices never has declared it flatly
unconstitutional.

Consternation in the states

The states, even aside from Supreme Court rulings, have been forced to
re-examine the fairness of their systems.

In Illinois, then-Gov. George Ryan halted executions in 2000 and later
commuted sentences after evidence showed that more than a dozen Death Row
inmates were wrongly convicted.

DNA tests have exonerated inmates elsewhere. Hundreds of capital
convictions or sentences have been overturned because of trial errors and
other due-process problems. States have struggled with providing adequate
legal representation for indigent defendants.

In 2003, flaws at a Houston police crime lab cast doubt on evidence in 16
Death Row cases. Earlier this year, Texas Gov. Rick Perry commuted a death
sentence to life in prison and asked the Legislature to reconsider the way
that Texas law treats accomplices in murder cases.

Baze v. Rees

On Jan. 7, the Supreme Court will hear arguments in the Kentucky case
challenging the application of the drugs sodium thiopental, pancuronium
bromide and potassium chloride when other injection methods are available
with less risk of pain.

Ralph Baze was put on Death Row for killing a Kentucky sheriff and deputy,
shooting them in the back with an assault rifle in 1992. Thomas Bowling,
who also is part of the case, was convicted of killing a couple and
wounding their son while the family sat in a car outside a dry cleaners in
1990.

Some wonder why a perpetrator of horrible suffering should be shielded
from an agonizing death. But it's a mistake to view this as a question of
coddling killers.

Instead, the issue is more about us: How does a society that values life
and individual freedom officially take that life from certain individuals
in a way that doesn't diminish us all?

Asking and answering that question almost certainly leads to an even more
fundamental one: Can society, knowing what it knows now about the death
penalty, justify taking life as a way of protecting the common good?

Baze v. Rees has brought together at least one curious alliance. The
liberal American Civil Liberties Union and the conservative Rutherford
Institute filed a joint brief in the case arguing that the current lethal
injection protocol should be declared unconstitutional because it operates
in "near-total secrecy" in most states, which "has unsurprisingly led to a
method of execution that poses an unnecessary risk of excruciating pain."

Despite undeniable popular support for capital punishment, enough doubts
surround its basic fairness that Texas should conduct a full re-evaluation
of who is subjected to it, what circumstances warrant it and how it's
delivered. And the current hiatus offers the opportunity.

Texas had no problem taking the lead on execution by lethal injection 25
years ago. If Texas wants to continue using a punishment from which
there's no return, this state should lead the way in repairing the glaring
flaws in its administration.

(source: Editorial, Fort Worth Star-Telegram)

USA:

The Myth of Deterrence: Death penalty does not reduce homicide
rate----DEATH NO MORE

In theory, the death penalty saves lives by staying the hand of would-be
killers. The idea is simple cost-benefit analysis: If a man tempted by
homicide knew that he would face death if caught, he would reconsider.

But that's not the real world. The South executes far more convicted
murderers than any other region yet has a homicide rate far above the
national average. Texas' murder rate is slightly above average, despite
the state's peerless deployment of the death penalty. If capital
punishment were an effective deterrent to homicide, shouldn't we expect
the opposite result? What's going on here?

Human nature, mostly. Murder is often a crime of passion, which by
definition excludes the faculties of reason. The jealous husband who walks
in on his wife and another man is in no position to deliberate rationally
on the consequences of killing his rival. The convenience store robber who
chooses in a split-second to shoot the clerk has not pondered the
potential outcomes of pulling the trigger.

People overtaken by rage, panic or drunkenness should be brought to
justice, of course, but they are hardly paragons of pure reason, and it's
unreasonable to assert that they consider the possibility of a death
sentence when committing their crimes.

Too distant a threat

Even premeditated killers don't expect to be executed. And for good
reason. Statistics show that a homicidal gangster is far more likely to
die at the hands of his fellow thugs than the hands of the state. As
economist and Freakonomics author Steven Levitt writes, "No rational
criminal should be deterred by the death penalty, since the punishment is
too distant and too unlikely to merit much attention."

Well, then, just speed up the appeals process, some say. But the appeals
process has already been shortened as much as possible without being
reckless. This at the same time that a steady stream of DNA exonerations
have raised important questions about investigative tactics once thought
to be foolproof.

Is it worth the risk of killing innocent people on the unproven theory
that it would result in fewer innocents dying via homicide?

This year, this newspaper reversed its longstanding support of the death
penalty because the process is deeply flawed and irreversible. Among the
moral, legal and practical reasons for our stance is the absence of hard
evidence that capital punishment prevents murder.

Some recent studies purport to show that executions actually deter
murders. These studies have been analyzed by others and found to be
fatally flawed "fraught with numerous technical and conceptual errors,"
as Columbia Law professor and statistics expert Jeffrey Fagan testified to
Congress. One Pepperdine study touted last month on the Wall Street
Journal op-ed pages found that a national decline in the murder rate
correlated with executions. But that study links two broad sets of numbers
and leaps to a simple conclusion.

Inconclusive at best

The devil really is in the lack of details. The national murder rate has
been declining for a decade and a half in states with and without the
death penalty. But the drop has been faster in states that reject capital
punishment. At best, evidence for a deterrent effect is inconclusive, and
shouldn't officials be able to prove that the taking of one life will
undoubtedly save others? They simply have not met that burden of proof,
and it's difficult to see how they could.

The only murders the death penalty unarguably deters are those that might
have been committed by the executed. But we shouldn't punish inmates for
what they might do. Besides, society has an effective and bloodless means
of protecting itself from those who have proved themselves willing to
murder. It's called life without benefit of parole. In a previous
editorial, we called this "death by prison."

Granting the state the power of life and death over its citizens requires
something far more solid and certain than mere guesswork.

(source: Editorial, Dallas Morning News)

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