NYT: Death penalty politics
Q: Why do prisoners on death row have to wait sometimes as long as 20 years before they are executed? Given the heinous crimes that they have committed, in my opinion they should be put to death as soon as possible or at least as soon as they exhaust their appeals.
W.G., of Collinsville
A: You might be interested to know that your question led me to uncover a fascinating catch-22 of sorts that I didn’t realize existed.
As you note, the growing pressure on states to make sure they absolutely, positively execute a truly guilty perp has led to an increasingly lengthy period between verdict and the needle or electric chair. According to the Bureau of Justice Statistics, the average time spent on death row before execution in 1985 was 71 months — or just less than 6 years. Now, it’s hovering around 190 months or about 16 years and it’s climbing. In one exteme case, Gary Alvord, a Florida man convicted of strangling three women, died after 40 years on death row — of natural causes.
But guess what? Even though the slow and rigorous appeals process is a prisoner’s last lifeline, some judges and legal scholars now charge that these long delays constitute cruel and inhuman punishment in themselves. They say it forces the convicted to endure the physical and psychological torture of living on death row for years upon years. As a result, judges in other countries are using it as a reason to overturn death sentences.
In September 2011, for example, the U.S. Supreme Court refused to stay the execution of convicted cop-killer Manuel Valle in Florida, and he was executed two hours later. But Justice Stephen Breyer dissented, saying that the 33 years Valle had spent on death row amounted to cruel and unusual punishment.
“Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades,” Breyer wrote in a similar dissent in 1999.
He pointed out that under 18th-century English law, executions were typically carred out two days after sentencing. Final justice is no longer that swift across the pond, but some countries still want it carried out much faster than we do here.
“There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” the Judicial Committee of the Privy Council in London wrote in 1993. Its ruling changed a death sentence into life in prison for two Jamaica prisoners who had been on death row for “only” five years.
Similarly, the European Court of Human Rights in 1989 ruled that extended periods on death row violated a provision of the European Convention of Human Rights that forbids “inhuman or degrading treatment or punishment.” While acknowledging the legality of the death sentence in certain cases, it nonetheless forbade Britain to deport a German man to Virginia to face capital charges because he might spend years on death row facing “the anguish and mounting tension of living in the ever-present shadow of death.”
Others, like Supreme Court Justice Clarence Thomas, seem to scoff at the notion.
“I am unaware,” he wrote in response to Justice Breyer’s 1999 dissent, “of any support in the American constitutional tradition or in this court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
Thomas likely would say that, through the work of such groups as Amnesty International and the Innocence Project bringing attention to the subject of the execution of the innocent, death-row prisoners should consider themselves fortunate that they enjoy far more time to prove their innocence.
A 2015 study published in the Washington Post, for example, found that of 8,466 death sentences imposed between 1973 and 2013, 3,194 were overturned on appeal — including 890 cases in which the conviction itself was thrown out. A similar study in California in 2002 found that for every execution carried out, seven death sentences are set aside. The reasons: incompetent lawyers, prosecutorial misconduct, faulty eyewitness ID and judicial errors. Moreover, based on DNA evidence, the Innocence Project has helped free at least 343 wrongfully convicted people, including 20 who spent time on death row.
For those reasons, those favoring the slow approach argue that it is preferable over quick, feel-good revenge when it involves the taking of human life. That’s why we have the seemingly labyrinthine appeals process, which is the short answer to your original question. Space prevents me from detailing this process in depth, but, in brief, it starts with appeals to appellate and state supreme courts, asking judges to review the evidence. At the same time, they may appeal their conviction by charging that their lawyers were incompetent. If they fail to sway the state courts, they then move on to the federal district, appellate and, finally, the Supreme Court.
Except for the Hollywood last-minute stay, these appeals are not taken up overnight, which accounts for the months upon years delay you lament. Others are thankful for it because capital cases may have elected prosecutors looking for headlines while the accused may be defended by appointed and less-than-vigorous defense lawyers. The long appeals process, they argue, is necessary to even the score as proven by the number of “criminals” who are later proven innocent.
For a detailed look at the process, try http://criminal.lawyers.com/criminal-law-basics/death-sentence-appeals-take-time-for-a-reason.html.
How many states still impose the death penalty?
Answer to Saturday’s trivia: If you miss seeing the total solar eclipse on Aug. 21, you’d better hope scientists make huge leaps in human longevity if you want to see another in St. Louis. This is the first total eclipse that this area has experienced since 1442 and the next one won’t happen until 2505. Of course, even if you’re not interested it will be hard to ignore. Darkness will fall in the middle of the day, planets and stars may appear, animals may act as if night were falling and the temperature may drop as much as 5 degrees. However, you must resist the temptation to look at the darkened sun with your naked eyes or risk severe eye damage or permanent blindness. Instead, find a pair of specially designed eclipse-viewing glasses or make yourself a cheap pinhole projector.