Southern Injustice

By Barbara Jean McAtlin
Edited by Kira Caywood

Southerners are obviously not rethinking their views on the death penalty. Although one U.S. state banned executions and ordered an intensive study of the practice, and at least five other states are considering similar measures, the South keeps killing with seeming impunity. Supporters claim that speeding the execution process ensures justice for crime victims and their families. For death penalty opponents, this lethal trend is extremely worrisome.

The death penalty seems to have gained popularity in the South. In February, Florida legislators approved a law limiting death row inmates' appeals, and calling for executing inmates within five years of being sentenced. The Florida Supreme Court moved to block the bill, but future changes to the Supreme Court could open the door again.

Nationally, the average exonerated prisoner spent 7 years on death row before being found innocent.

Meanwhile Alabama and Georgia follow the example of Texas, and push for faster executions. Georgia's House easily voted to keep capital punishment but hotly debated switching from electrocution to lethal injection. Some legislators argued that switching the mode of death to lethal injection would "sanitize" executions. Others were concerned that the change would lead to another round of appeals, further slowing the execution process.

Since the death penalty was reinstated in 1976, a full 80 percent of the nation's 624 executions have been in the South. In 1998, Alabama sentenced more people to death than any other state. One out of every 161,185 Alabama residents was sentenced to death.

The Commonwealth of Virginia might like to get on the "let's rock and roll" bandwagon, too. When Terry Williams was sentenced to die in 1986, there were 32 others on Virginia's death row. Williams is the only one left. Virginia has executed 71 people since 1986. Williams would be dead now too, but the U.S. Supreme Court intervened.

The U.S. Supreme Court stopped four executions in Virginia in the past twelve months. Recently, the justices ruled in favor of Williams and another inmate and also heard arguments in a third Virginia capital case. Unfortunately, the court has not taken a capital case from Texas, although Texas has 15 times more death row inmates than Virginia.

Each Virginia case raised specific concerns about the way capital punishment is applied in Virginia. Some judges, lawyers and lawmakers (many of them capital punishment supporters) say this trend sends a message that Virginia is too quick to execute. By staying executions, the court is refusing to tolerate an incorrect or unreasonable interpretation of the Constitution, and making a compelling statement that Virginia has stepped over an invisible boundary.

The courts in Virginia, more than any other death penalty state, have enforced deadlines and procedure so tightly that some inmates never even get a chance to show they may be innocent or reveal court errors and incompetent defense counsel.

With the media attracting nationwide attention, concern about putting innocent people on death row is mounting. As national awareness of wrongful convictions increases, some conservative Virginians are now active in calling for death penalty moratoriums. Christian broadcaster Pat Robertson of Virginia Beach, as well as the ACLU of Virginia, have called for a moratorium. For the first time, the Virginia House of Delegates passed a bill to make it easier for death row inmates to bring forward new evidence without regard to Virginia's infamous -- if wildly unfair -- 21-day rule on new evidence.

Second only to Texas with 35 executions, Virginia executed 14 people in 1999. The average time between sentence and execution in Virginia dropped 40 percent since 1995 to six years. Six years is more than four years faster than the national average. Virginia's mostly Republican officials are proud that these cases no longer "drag" on for 10 to 15 years. They claim that defendants are not losing any of their appeal rights. What some may see as rushed, they see as efficient justice. Unfortunately, some Northern states like New Jersey would like to learn about "efficient justice" from Virginia.

Virginia's government says its appeals process moves along more quickly because the Commonwealth reserves the death penalty for those who really deserve it. They sentence fewer people to death per homicide than most states. State's Attorney General Mark L. Earley has said, "No person is subject to the death penalty in Virginia until all levels of judicial review have been exhausted. The governor has the power to grant or deny clemency after all the appellant reviews, if the circumstances so warrant."

Even so, the two cases and the one pending case before the 4th U.S. Circuit Court of Appeals highlight some serious problems with Virginia's death penalty:

1. When underpaid, overworked or incompetent defense attorneys make mistakes, Virginia's courts have refused to give defendants another chance.

2. Strictly enforced procedural rules and shortened deadlines mean that many of Virginia's death row inmates have not gotten hearings about prejudiced jurors or recently discovered evidence that could either clear them of their charges or at least change their death sentences to non-death sentences. Other states and the federal appeals courts have been much more lenient in these types of cases.

3. The Virginia Supreme Court overturns a smaller percentage of death sentences than any other state court The U.S. Supreme Court has said that the extremely conservative 4th Circuit has been misinterpreting a 1996 federal law in allowing the commonwealth's decisions to stand.

4. Virginia has a 21-day rule -- one of the shortest deadlines in the nation for reopening a case. After sentencing, once 21 days have passed, the commonwealth refuses to look at any new evidence or run new forensic tests on old evidence.

One man on Virginia's death row for the rape and murder of his girlfriend is afraid no court will hear the evidence he says will clear him. He says a DNA test could prove he did not kill his girlfriend. He missed Virginia's 21-day deadline.

States like North Carolina have no deadline for new evidence, while other states carry less stringent rules. In South Carolina, the deadline is one year after the evidence could, or should, have been discovered.

The way Virginia applies the death penalty is obviously arbitrary and capricious, and the system does not pay attention to the merits of a death row prisoner's claim of innocence.

In 1994, the U.S. Supreme Court ruled in a South Carolina case that if a prosecutor argues that a defendant should receive a death penalty because he is a danger to society, the defendant has the right to make the jury aware of the fact that he will be never be eligible for parole and never leave prison. After that ruling, the Supreme Court sent quite a few cases back to the lower courts and most defendants were able to get new sentencing hearings. Hoping to use the South Carolina ruling as a precedent, lawyers for Bobby Lee Ramdass, who robbed two pizza stores and killed a Fairfax County, Virginia convenience store clerk in 1992, argued that he should have been allowed to tell the jury that the robberies and killing added up to no parole under Virginia's three strikes law. The Virginia Supreme Court said no. Juries had already found Ramdass guilty of the robberies by the time he was tried for murder. One of his convictions didn't count because the judge had not yet entered the guilty verdict into the official record.

Other Southern states have proven to be more lenient than Virginia. The Alabama Supreme Court, feeling it is safer to lean closer to the side of due process, has generally given death row inmates the benefit of the doubt when deadlines are missed or new evidence can be presented.

Although prosecutors fought the proposal and the Senate tabled it, the Virginia House of Delegates recently passed a bill that would give death row prisoners 3 years instead of 21 days to bring forth new evidence.

"If we are going to be executing human beings, we had better damn sure know that we have closed off every door on a person being innocent," said Delegate L. Preston Bryant Jr.

Since 1982, Texas has executed 214 people. Texas boasts of being number one in executions but Virginia is quickly gaining speed and Florida is frantically and effectively trying to jump onto the killing trolley. As in the cases of Randall Dale Adams and Mr. Clarence Brandley seen in the Justice: Denied article, The Death Penalty: Pros and Cons -- The current trend is to streamline executions. Justice or state-sanctioned murder? both would have been executed before their claims of innocence could ever be proven under the new "streamlining" laws. Texas Governor George W. Bush would do well to pause in his commitment to executions and take the time to review the death penalty there.

There are three serious flaws in Texas' system enabling them to join the Southern Injustice list. Most serious is nearly every capital defendant's inability to afford a defense attorney, much less a quality defense attorney. The Texas judiciary is too partisan, and relies on a get-tough-on-crime stand to raise campaign money. Also, in capital cases, Texas jurors are not given the option of sentencing someone to life without parole. Even though there is concern that the pace of executions in Virginia is gaining on Number One Texas, defenders of the Commonwealth's death penalty proudly point to one statistic: Since 1973, no Virginia death row inmate has been exonerated. Technically, they're right, but they've forgotten David Vasquez. Vasquez, a developmentally disabled man from Manassas, was so scared of being executed that he pleaded guilty to a 1984 rape and murder he did not commit. Vasquez would still be in prison today -- or executed if he had not plea-bargained a life sentence, except for a stroke of luck. The real killer finished serving an unrelated prison sentence, then went on a killing spree. Virginia officials, faced with a number of crimes similar to the one for which Vasquez was in prison, then realized their mistake. By that time, Vasquez had spent five years in prison and had been raped repeatedly.

Three years after the Vasquez murder conviction, Timothy W. Spencer finished serving a sentence for burglary. Over the next three months, he assaulted and killed three women near Richmond. He also raped and strangled a woman in Arlington, only four blocks from the scene of the murder for which Vasquez was convicted.

Police used DNA to link Spencer to the four Richmond killings and the Arlington rape in Arlington. He was executed in 1994. Vasquez, now 53, lives back in Manassas, Virginia with his disabled mother. He says the prosecutors just read the plea agreement to him (which he didn't understand) and told him to sign it and he would not go to the electric chair. According to court records, two detectives yelled at and lied to Vasquez, telling him they had found his fingerprints inside the victim's home. Vasquez became confused and as the officers questioned him about the brutal details, he began to mimic them, and in two other interviews with police, he described a "horrible dream" that paralleled the case.

Vasquez' attorneys argued that these interrogations were tainted because of his lower than normal intelligence and because he had not been read his rights during the first interview. Vasquez's court-appointed lawyers persuaded him to enter an "Alford plea." An Alford Plea is used when acknowledging that the state has enough evidence to convict.

Some inmates turn to the governor. Since 1981, governors of Virginia commuted twelve death sentences -- more than any state except Texas. Attorneys for mentally retarded Earl Washington Jr. found "lost" DNA evidence that proved he was innocent of a 1982 rape and murder. In 1994, he accepted life in prison from then-Virginia Governor L. Douglas Wilder because, by law, he could not go back to court.

A measure recently passed by a Senate panel says that the mentally retarded cannot be executed or sentenced under the same rules as other murderers. The bill sets a minimum IQ score of 69 to establish the low intellectual functioning prong of mental retardation.

Jerry Blair of the Florida Prosecuting Attorneys Association said the bill was unnecessary and that there are safeguards already in place to make certain no mentally retarded person is executed in Florida. He also says there is no evidence that Florida has ever executed a mentally retarded person, though technically the current laws give the state the authority to do so. Lawmakers justified their position by saying that just because it hasn't happened yet, the possibility of executing a mentally retarded person still exists. The U.S. Supreme Court held in 1989 that the Constitution's cruel and unusual punishment clause does not prohibit executing a mentally retarded capital defendant. The Death Penalty Information Center lists three retarded people among the 48 Florida has executed since 1979. There are others still on death row.

Even in this day and age, it seems that Florida legislators need to be taught the difference between mental illness and mental retardation. Obviously some know. Former Senator Frank Mann, who represents the Association for Retarded Citizens, is circulating this definition from the American Journal of Law and Medicine: "Mental retardation is completely different from mental illness or insanity. Mental retardation is a permanent condition. It is a condition of low intelligence. There is no cure for it. Mental illness, on the other hand, is a disease of the mind. It is a psychological sickness that can be treated with therapy and medication. Although much mental illness is chronic and incurable, many mentally ill persons get better."

The issue is whether Florida should execute the mentally retarded. The Senate's Criminal Justice Committee voted unanimously that it should not. Representative Randy Ball, chairman of the House Crime and Punishment Committee, said he will not let his committee members hear the bill because they would approve it. Unfortunately, Florida is filled with politicians who think exactly as Ball does. State's Attorney Jerry Blair spoke for the Florida Prosecuting Attorneys' Association to try to convince the committee that this bill would open a "Pandora's box" of new death row litigation. Blair reiterated that the mentally retarded are already fully protected and that none are on death row. One of the only four Senators who questioned Ball and Blair asked with feigned innocence what could possibly be wrong with passing the bill if it would make no difference.

After months of complaining about state courts' liberalism, lawmakers are debating sweeping changes that could give Florida Governor Jeb Bush more control over Florida's judicial branch. Lawmakers are even allowing him to add two handpicked justices to the seven-member Supreme Court. Recently, the state Supreme Court angered state lawmakers by blocking a law that would limit the number of appeals death row inmates are allowed to file, and, in recent years, the court found Republican initiatives to limit abortion rights unconstitutional. The proposal to add the two justices would allow Bush, whose administration introduced a plan last year to recruit more "ideologically compatible" judges, to reshape the state's Supreme Court at a time when other key Republican initiatives are facing constitutional challenges.

Florida Governor Bush does not have to sign the proposed amendment to make these changes in the Supreme Court. The Florida Legislature needs a three-fifths vote in each chamber to put the proposal on the ballot. Republicans have the necessary votes, but voters will have the final say. According to a Bush spokeswoman, Bush does not support the plan and had nothing to do with getting it started. She said he has not been privy to any of the discussions that would expand the Court and his power over it, nor does he see a reason for any changes that would allow the expansion. Democrats, who are charging that Bush and Republican lawmakers have no respect for the constitutionally mandated separation of power between branches of government, are angry. They say the governor can oppose this without expending any political capital and still be secretly gleeful that he gets to make the additional appointments and that Bush appears to be keeping an open mind about other proposals that would give him more influence over the judicial nominating process.

The Florida Legislature convened in a special session in January to enact Florida's Death Penalty Reform Act of 2000. The final Reform Act was very similar to capital punishment legislation that failed to gain approval in three previous regular sessions. Would the bill have been enacted into law during a regular session? It is critically flawed, unconstitutional, and impinges on the separation of judicial powers by intruding on the Florida Supreme Court's jurisdiction to manage the state court's docket and adopt its own criminal procedure rules. By establishing unrealistic time frames, the bill increases the chance that an innocent inmate will be executed. It creates a dual track system like those put into place by Missouri and Arkansas State legislatures, but later abandoned as unworkable. Many anti-death penalty supporters think this legislation will not only fail to speed up the capital appeals process but will also bring the system to a grinding halt. One can only hope they are correct.

The special session demonstrated Governor Bush's political clout. Jeb wanted lethal injection; he got it. By making this move he was able to stave off a potential problem with the U.S. Supreme Court after agreeing to review a constitutional challenge to using the electric chair in Florida, and a reform package designed to reduce the time between sentence and execution to only five years. Bush succeeded because the majority party was Republican and not a single Republican voted against the bill. Bush also convinced many Democrats to cross over to meet the required two-thirds vote. Bush's plan seeks to mimic the appeals process in Florida after the one overseen by his older brother, Texas Governor George W. Bush. As governor, George W. has lorded over the executions of 111 men and two women. In contrast, Florida has only executed 44 inmates since 1976, but they're trying desperately to catch up. This is not democracy -- this is a "Who Can Kill More" game of state-sanctioned murder being played between two brothers with signatures that are important enough to save or, more often, take, a life.

Although Jeb Bush signed the Death Penalty Reform Act of 2000 into law, there were a few heroes. The Black Caucus fought hard for an amendment to safeguard against sentencing discrimination. The amendment failed. Black lawmakers are angry that Bush refused to consider allowing blacks to challenge a death sentence on the grounds that it was racially motivated. The lawmakers cited a 1991 study showing that Florida's black defendants are more likely to receive the death penalty than white defendants and that Blacks who kill white people were three times as likely to be executed than killers of black people. A member of the Commission on Capital Cases argued against violating the separation of powers and setting up a confrontation between the Legislature and state Supreme Court. Stating that prosecutors are demanding and that judges are imposing too many inappropriate death sentences, others asked the Legislature to consider addressing critical issues at the trial court level. They were too diplomatic to come right out and say it, but the implication was clear: elected prosecutors and elected judges are playing politics with the death penalty, trusting the Supreme Court to correct their inappropriate sentences. Minority members also wanted the Legislature to stop allowing juries to recommend death by a simple majority vote. Most states, including Texas, require unanimous verdicts or, at the very least, a large majority. The legislatures would not listen.

A trial lawyers' group has said that many of the Legislature's recent actions are constitutionally suspect and invite challenge. Scrutinizing the first year of legislative battles under Jeb Bush, House Speaker John Thrasher says he sees a pattern that troubles him: The Republican Legislature passes its agenda and lawsuits uphold it. Every significant piece of legislation that has been passed has produced a lawsuit and that is bad for business.

Lawsuits have delayed legislation that would create a "Choose Life" license plate, place limits on civil lawsuits, and speed up the pace of executions. Trial lawyers have been subject to Thrasher's criticism after the Legislature passed a law last year that was designed to limit civil lawsuits. This was passed over the opposition of lawyers as well as consumer advocates. The opponents sued, but the matter has not been resolved in court. Florida's Republican Senate sued after Bush vetoed part of a $40-million appropriation to help schools move to longer school years. In that case, the Florida Supreme Court ruled that Bush violated the Constitution by interpreting his veto power too broadly.

Another law being challenged is the Death Penalty Reform Act of 2000. Court-appointed attorneys for death row inmates have sued over this new law designed to speed up executions by limiting an inmate's number of appeals. There are several potential constitutional issues involved although it is rather amusing to note that Florida is actually suing Florida and that the number of lawsuits indicates the controversial nature of the laws the Legislature is passing.

After the Death Penalty Reform Act of 2000 was passed, the state Supreme Court unanimously ruled to stop the new law. The court ruled that the old appeal procedures will stay in effect for now citing confusion among lawyers and judges over which rules of criminal procedures apply to the Death Penalty Reform Act of 2000. Jeb Bush reacted angrily and said the court's decision "may result in even more delay for victims and defendants." The death penalty lawyers who challenged the new law were pleased with the court's decision and believe the halt will give them an opportunity to fully hear certain issues regarding the law.

Even as the law was passed, nearly 200 death row inmates who could be affected were waiting to sue. They argue that the law takes away the rights of inmates facing the death penalty and they pointed out that at least 20 people were freed from Florida's death row because of doubts about their guilt.

The new law has an exception that Bush said would allow new evidence of innocence to be heard after other appeals are exhausted. Since the exception is extremely narrow and will not permit stays of execution while the petitions are being prepared, opponents say it is utterly meaningless. Opponents also said that, as a separate branch of government, the court is under no obligation to adopt the streamlined appeals process that was passed. The Legislature hopes to force the court into abiding by the streamlining measures by passing the plan with a two-thirds vote even though the court referred to the new law as the Legislature's invitation to adopt new rules.

More than 100 relatives of murder victims and death-row inmates in Virginia joined protesters on the state Capitol grounds in Richmond recently to share their stories, honor their loved ones and to call for a moratorium on executions. Speakers included former Virginia Attorney General William G. Broaddus and State Senator Henry L. Marsh III. Broaddus, Virginia's attorney general in 1985 and 1986, said the death penalty "does not serve as a deterrent." Broaddus is an outspoken opponent of the death penalty. He became a death-penalty critic after helping a death row inmate with his appeals many years ago. Marsh, whose brother was murdered in 1997, said that Virginia's 21-day rule presents too narrow of a chance for inmates to present newly discovered exculpatory evidence.

The father of murder victim Hope Denise Hall, a mother and part-time associate producer at WWBT-Channel 12 who was killed in Petersburg in 1994, joined the rally. He said that executing whoever killed his daughter would not bring her back and that he is firmly against the death penalty. Ms. Hall's killer is on death row for her rape and murder. He is also serving a 100-year sentence for raping two women in Franklin, Virginia. The killer's grandmother drove to Virginia from New York to attend the rally. She believes her grandson is innocent and also called for a moratorium on the death penalty.

Many demonstrators said that Virginia's death penalty has been tainted by unfair trials and a process that is too restrictive for inmates to exonerate themselves with new evidence of innocence. Thanks to anti-death penalty groups like Virginians Against Capital Punishment, there is a small but growing movement for a moratorium in the U.S. as well as in Virginia.

In Tennessee, the 6th U.S. Circuit Court of Appeals recently stayed the scheduled executions of a convicted cop killer and a child murderer. These would have been Tennessee's first executions in 40 years. One of those scheduled to die claims he is insane and should not be executed for raping and killing an 8-year-old girl in 1979. Another inmate, Phillip Workman, featured in issues 10 and 11 of Justice: Denied magazine, says there is new evidence proving he did not fire the fatal shot that killed a Memphis police officer in 1981. Workman confessed to the shooting but now says a recently discovered X-ray shows the officer was killed with a bullet other than his. In issuing the two stays just moments apart, the court said it would review both men's claims.

In just one glance, the thinking person can see that capital punishment in the southern United States is rife with error. There are cases of forensic fraud, like the story of a medical examiner who, in a death report, included the weight of the gallbladder and spleen of a victim from whom both organs had been surgically removed while he was alive. There are many cases of mistaken identification by eyewitnesses and victims that contributed to many convictions being overturned after DNA tests. Helped along by the normal human thirst for retribution, "good ol' boy" criminal investigations lead prosecutors and jurors to believe what they want to believe -- not what the evidence shows. There is also evidence that most juries will convict even when admissions have been proven incorrect by defense counsel and contradicted by physical evidence. The use of jailhouse snitches who receive reduced sentences by lying about admissions to unsolved crimes by other inmates is a tremendous problem in Southern states. Last but not least, there is a large problem with providing capital defendants wildly incompetent defense representation -- like the attorney in a Kentucky case who gave the address of a local tavern as his business address.

Sources:

The Washington Post Company
Bureau of Justice Statistics
Death Penalty Information Center
Virginia Department of Corrections
The Houston Chronicle
AP News
The Sun-Sentinel
The Miami Herald
The Richmond Free Press
The New York Times

Justice Denied