Monday, February 11, 2008

Death Penalty Time Out Needed

It's Applied Incorrectly And Unfairly


The Cool Justice Report
Feb. 11, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

About 20 years ago I was invited to tour China by the People to People Citizen Ambassadors Program as a guest of the Chinese Bar Association.

A colleague had made the trip several years prior and I called to inquire about his experience. He told me that he had witnessed a trial for larceny in a Bejing courtroom and, to his surprise, the sentence was death!

He inquired of his Chinese lawyer host how long the appeals process would take. "There are no appeals," he was told. The man was taken outside and shot. Terrible retribution indeed, for a crime of theft, that in this country may not have even warranted jail.

The impact of a sentence of death in that country was immediate and dramatic. In this country by contrast, prisoners languish on death row, sometimes for decades, while costly appeals raise countless legal issues. By the time an execution is scheduled memories of the crime, and many times even of the victim, have faded.

There are recognized theories that support punishment: deterrence, retribution, rehabilitation, isolation, restoration and education. Of these theories rehabilitation, restoration (making a victim whole) and education are inapplicable to the death penalty debate. Deterrence and retribution are the commonly advanced theories by those who advocate capital punishment.

A total of 37 states and the federal government have death penalties, although the call for a moratorium is gaining momentum. No empirical evidence exists to support a claim that those who commit murder in states with no death penalty would not have acted had they faced capital punishment.

The American Bar Association established the Death Penalty Moratorium Implementation Project in September 2001, in an effort to launch a nationwide moratorium on the death penalty. The ABA has not taken a moral or philosophical stance on capital punishment. Rather, it has focused on the current system of the administration of the penalty.

"Today, however, it is apparent that the efforts to forge a fair capital punishment jurisprudence have failed," the American Bar association Death Penalty Moratorium Implementation Project asserted in a statement. "The ABA has found that the administration of the death penalty, far from being fair and consistent, is instead a haphazard maze of unfair practices with no internal consistency."

As the ABA Project has reported: "The available studies, newspaper and magazine articles, case law, and first-hand reports that have considered the legal landscape of death penalty issues led the ABA to conclude that too many defendants in capital cases are not receiving the fundamental fairness due to them. The ABA has identified eight main areas of concern: defense services, procedural restrictions, clemency, jury instruction, judicial independence, racial discrimination, and the sentencing of juveniles and mentally retarded or mentally ill defendants in capital cases."

The United States Department of Justice, Office of Justice Programs, Bureau of Justice has compiled current and historical death penalty statistics. The bureau reports that in 2007, 42 persons in 10 States were executed -- 26 in Texas; 3 each in Alabama and Oklahoma; 2 each in Indiana, Ohio, and Tennessee; and 1 each in South Dakota, Georgia, South Carolina, and Arizona.

Racial disparity in the application of capital punishment and in its administration is a major argument advanced in favor of a moratorium as well as in constitutional challenges. Death penalty opponents have presented formidable arguments and empirical evidence supporting the claim of racial disparity.

African Americans make up about 13 percent of the U.S. population.

Of those persons executed in 2007, 28 were white and 14 were black. Since the death penalty was reinstated by the Supreme Court in 1976, white inmates have made up more than half of the number under sentence of death. The bureau's statistics indicate that of persons under sentence of death in 2006:

-- 1,802 were white

-- 1,352 were black

-- 28 were American Indian

-- 35 were Asian

-- 11 were of unknown race.

Although women have been subjected to death, at least in 2007 the 42 inmates executed were men. At that same time, 37 States and the federal prison system held 3,228 prisoners under sentence of death, 17 fewer than in 2005. Of that number, 54 of the condemned were women.

Critics of the deterrence theory of capital punishment point to the bureau statistics that reveal that among inmates under sentence of death and with available criminal histories at year-end 2006: nearly 2 in 3 had a prior felony conviction and 1 in 12 had a prior homicide conviction. Thus of the 3,228 condemned inmates, 269 had previously killed. A fair conclusion is that fear of execution does not necessarily deter even a prior killer from taking a life.

Also included in the debate are the results of the Innocence Project. The project was started in 1992 by Barry Sheck and Peter Neufeld at the Cardozo School of Law at Yeshiva University. To date 212 people have been exonerated through DNA testing. Of that group, 15 served time on death row. On average, those exonerated had served at least 12 years in prison before release. A number of states, Connecticut included, have established Innocence Projects.

Whether you oppose or endorse capital punishment, the startling information exposed by the ABA Moratorium Implementation Project calls for a reasoned time out. If a civilized nation is to justly apply its law, and in particular the most extreme sanction, there must be fairness in the process.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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