Roughly 15 death row prisoners
are scheduled to be put to death between now and October, according to the
Death Penalty Information Center. This flood of executions is the result of
the Supreme Court’s ruling that upheld the constitutionality of a
troubling form of lethal injection. The next few months, as states put their
machinery of death into overdrive, are an ideal time for the nation to
rethink its commitment to capital punishment.
Last month, the Supreme Court
upheld Kentucky’s method of lethal injection. Although there was
convincing evidence that the three drugs that Kentucky injects can cause
excruciating pain and that there are not proper safeguards to avoid needless
suffering, the court ruled that it does not violate the Eighth Amendment’s
prohibition of cruel and unusual punishment.
After the court accepted the
case last fall, many states halted executions. Now, the Death Penalty
Information Center projects that by the end of the year, there could be 50
to 60 executions, which would make the upcoming months one of the busiest in
years on America’s death rows. A disproportionate share of these will no
doubt occur in Texas, which last year carried out more than 60 percent of
the nation’s executions.
These scheduled executions come
at a time when many Americans are, rightly, turning away from capital
punishment. We believe that the taking of a life by the state is in all
cases wrong, but it is particularly so with the deeply flawed system that
exists today. Many defendants lack adequate legal representation at their
trials, race distorts who is sentenced to death for what crimes and juries
are “death qualified” — jurors with moral objections to the death
penalty are removed. As the recent rash of DNA exonerations has shown,
judges and juries too often sentence innocent people to death.
In the Kentucky case, Justice
John Paul Stevens wrote a separate opinion in which he enumerated the many
problems with the application of the death penalty and said that he decided
that it is inherently unconstitutional. He also expressed his hope that the
case would generate debate not just about lethal injection but about “the
justification for the death penalty itself.” With executioners gearing up
across the country to start putting prisoners to death, state legislatures,
governors, judges and ordinary Americans should start that debate.
RALEIGH, N.C. — The release of the third
death row inmate in six months in North Carolina last week is raising fresh
questions about whether states are supplying capital-murder defendants with
adequate counsel, even as an execution on Tuesday night in Georgia ended a
seven-month national suspension.
In all three cases, North Carolina appeals
courts found that evidence that would have favored the defendants was
withheld from defense lawyers by prosecutors or investigators. In two of the
cases, including that of Levon Jones, who was released on Friday after 14
years on death row, the courts said the defendants’ lawyers had failed to
mount an adequate defense. Nationwide, Mr. Jones’s release was the sixth
in a year.
John Holdridge, director of the A.C.L.U.
Capital Punishment Project, which provided representation for Mr. Jones,
said the successful appeals showed that the problem with the death penalty
was not the method of execution — the issue ruled on by the Supreme
Court last month — but instead “poor people getting lousy
lawyers.”
“All these states are gearing up to start
executing people again, and nobody seems to be concerned about these
systemic problems,” Mr. Holdridge said.
On Tuesday evening, after the Supreme Court
declined to stop it, the State of Georgia conducted the first execution
since the court ruled last month that a method of lethal injection was not
unconstitutional. William E. Lynd, 53, was put to death by injection for the
1988 killing of his girlfriend, Ginger Moore. No prisoners had been executed
in the United States since last September, while the court was considering
the issue.
During that same period, Georgia’s new
public defender system came under attack by politicians and was recently
forced to cut more than 40 positions.
That system, established after a series of
lawsuits, was patterned after one North Carolina put in place in 2001, which
was considered a national model. But not many other states have followed
suit, said Robin Maher, director of the American
Bar Association’s Death Penalty Representation Project.
“I wish I could say that things have gotten
a lot better, but in fact I can say with confidence that things have changed
not much at all,” Ms. Maher said. “We are seeing the same kinds of
egregiously bad lawyering that we saw 10 or 15 years ago, for a variety of
reasons, including inadequate funding.”
Of the 36 states that allow the death
penalty, only about 10 have statewide capital-defense systems, one of the
practices recommended by the Bar Association.
The three men released in North Carolina were
all convicted in the mid-1990s, before a barrage of criticism of the
state’s capital punishment system, including an investigation in 2000 by
The Charlotte Observer that showed that 16 death row inmates had been
represented by lawyers who were later disbarred.
North Carolina made a number of changes that
included establishing the statewide defender system and broader discovery
rules for defense lawyers. Beginning in 1996, defense lawyers working on
appeals in death penalty cases were permitted to view all investigative
files pertaining to the case, and in 2004 the same right was extended to the
defense in all criminal cases.
Joseph B. Cheshire, the lawyer for one of the
three released men, Jonathon Hoffman, credited the discovery rules with
bringing to light what he called a pattern of wrongful convictions.
The court-appointed trial lawyers for Mr.
Hoffman, convicted of killing a jewelry store owner during a robbery, were
not told that the main witness against him had been paid for his cooperation
and was given immunity from prosecution and a reduced sentence for bank
robbery. Mr. Cheshire said that a copy of the district attorney’s notes
was altered to conceal those facts before they were provided to the defense
for discovery. Mr. Hoffman was released in December.
Mr. Cheshire is also the chairman of the
state’s Indigent Defense Services Commission. Thanks to those two changes,
he said, “the likelihood today of someone being convicted who’s innocent
is far less than it was five or six years ago.”
The man who prosecuted Mr. Jones, however,
does not concede that the defendant was innocent. The prosecutor, G. Dewey
Hudson, said that he still believed that Mr. Jones was involved in the
murder, but that he could not retry him because crucial witnesses had died
and one had recanted.
“It has taken 15 years for the court system
to make the determination that Mr. Jones’s original counsel was
ineffective,” Mr. Hudson said in a statement released Friday. “As a
result of this delay, the State has been severely handcuffed in its
obligation to prosecute Mr. Jones for the murder of Leamon Grady.”
Cassy Stubbs, the A.C.L.U. lawyer who
represented Mr. Jones, said all of the witnesses from the initial trial were
still living.
Mr. Jones was convicted of robbing and
shooting Mr. Grady, a bootlegger in Duplin County. The main witness against
Mr. Jones was a former girlfriend, Lovely Lorden, who testified that she had
gone with him to Mr. Grady’s house the night of the killing and heard
gunshots while waiting outside.
State courts rejected Mr. Jones’s claims of
ineffective legal counsel. But a federal judge, Terrence W. Boyle, later
found that Mr. Jones’s trial lawyers failed to do a background check that
would have revealed Ms. Lorden’s criminal background, failed to interview
her before trial and failed to obtain copies of inconsistent statements she
made. They also failed to present evidence that Mr. Jones might be mentally
ill, cognitively impaired, or had a history of substance abuse, the judge
found, information that could have saved him from a death sentence.
“Jones received two appointed attorneys
that spent virtually no time or effort investigating the offense or his
background,” Judge Boyle said.
In subsequent hearings and affidavits, it
became clear that Ms. Lorden was a frequent police informant and that,
contrary to testimony at the trial, she had known when she came forward in
the Grady case that there was a $4,000 reward available.
Though Ms. Stubbs said that there was
evidence that pointed to another man in the killing, Mr. Hudson said in a
telephone interview that he considered the case closed.
Mr. Jones’s release came on the heels of
that of Glen E. Chapman, who was convicted of killing two women, Betty Jean
Ramseur and Tenene Y. Conley, in Union County in 1992. Judge Robert C. Ervin
of State Superior Court ruled in April that Mr. Chapman’s lawyers had
failed their client, noting that one of them could recall interviewing only
one witness and had visited the crime scenes for the first time two weeks
before trial. The lawyers had both admitted to heavy drinking during other
trials.
Judge Ervin also found that Dennis Rhoney,
then a police detective, knowingly presented false and misleading
information on the stand. The State Bureau of Investigation is reviewing
perjury claims against Mr. Rhoney.