Another case for banning the death penalty

A few days ago, Anthony Graves called his mother and asked what she was cooking for dinner. She asked why he wanted to know. He said, "Because I'm coming home."

Maybe it sounds like an unremarkable exchange. But Anthony Graves had spent 18 years behind bars, 12 of them on death row, for the 1992 murder of an entire family, including four young children, in the Texas town of Somerville. It wasn't until that day, Oct. 27, that the district attorney's office finally accepted what he'd been saying for almost two decades: He is innocent.

So the news that Graves would be home for dinner was the very antithesis of unremarkable. His mother, he told a news conference the next day, couldn't believe it. "I couldn't believe I was saying it," he added.

Graves' release came after his story appeared in Texas Monthly magazine. The article by Pamela Colloff detailed how he was convicted even though no physical evidence tied him to the crime, even though he had no motive to kill six strangers, even though three witnesses testified he was home at the time of the slaughter.

The case against Graves rested entirely on jailhouse denizens who claimed they'd heard him confess and on Robert Carter, who admitted committing the crime, but initially blamed Graves. Carter, executed in 2000, recanted that claim repeatedly, most notably to District Attorney Charles Sebesta the day before Sebesta put him on the stand to testify against Graves. Defense attorneys say Sebesta never shared that exculpatory tidbit with them, even though he was required to do so.

Colloff's story drew outraged media attention, including from yours truly. But the attention that mattered was that of the current DA, Bill Parham, who undertook his own investigation. He was unequivocal in explaining his decision to drop the charges. "There's not a single thing that says Anthony Graves was involved in this case," he said. "There is nothing."

One hopes people who love the death penalty are taking note. So often, their arguments in favor of that barbarous frontier relic seem to take place in some alternate universe where cops never fabricate evidence and judges never make mistakes, where lawyers are never inept and witnesses never commit perjury. So often, they behave as if in this one critical endeavor, unlike in every other endeavor they undertake, human beings somehow get it right every time.

I would not have convicted Anthony Graves of a traffic violation on the sort of evidence Sebesta offered. Yet somehow, a jury in Texas convicted him of murder and sent him off to die.

When you pin them on it, people who love the death penalty often retreat into sophistic nonsense. Don't end the death penalty, someone once told me, just enact safeguards to ensure the innocent are never sentenced to die.

Yeah, right. Show me the safeguard that guarantees perfection.

Those who propose to tinker with the death penalty until it is foolproof remind me of the addict attempting to negotiate with his addiction, desperately proffering minor concessions that will allow him to continue indulging in this thing that is killing him.

But there comes a day when you simply have to kick the habit.

As a nation, we are stubbornly addicted to the death penalty, strung out on exacting retribution and calling it justice. Even though we know innocent men and women have surely died as a result.

Or, like Anthony Graves, been robbed of irreplaceable years. He was 26 when he was arrested. He is 45 now. When he made that call home to his mother, he borrowed his lawyer's cell phone.

The lawyer had to show him how to use it.

LEONARD PITTS JR. is a columnist for the Miami Herald, 1 Herald Plaza, Miami, Fla. 33132. Write to him at lpitts@miamiherald.com .

John Paul Stevens's One Regret: Upholding The Death Penalty

Over an almost 35 year Supreme Court career, now retired Justice John Paul Stevens said recently that the lone vote he regrets is one that he cast to restore the death penalty in 1976.

Less than a year into his Supreme Court judgeship, Stevens sided with the majority decision in Gregg v. Georgia a case that served to overrule a temporary stay in capital punishment enacted by Furman v. Georgia in 1972.

Three and a half decades later, Stevens spoke with NPR about that particular vote and the misgivings he had about his opinion in the case.

From NPR's report:

"I thought at the time ... that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate," he says. But, over the years, "the court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense."

According to NPR, Stevens described the bending of the court toward capital punishment as a function of an increasing number of "hard-line conservative justices" who broadened the applicability of the death penalty.

"Not only is it a larger universe, but the procedures have become more prosecution-friendly," Stevens told NPR.

Practices such as allowing prosecutors to screen jurors who could potentially be opposed to giving the death penalty, as well as the approval of emotionally-charged testimony from the families of victims during the sentencing phase of trials have all "load[ed] the dice in favor of the prosecution and against the defendant," Stevens told NPR.

Though Stevens did also vote with the majority in Baze v. Reese, a Kentucky decision that upheld the death penalty by lethal injection in 2008, he called his vote in Gregg "the one vote I would change." According to NPR, Stevens described his vote as "incorrect," and claimed the 1976 court "did not foresee how it would be interpreted."

"I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing," Stevens said. "And I think if the procedures had been followed that we expected to be in place, I think I probably would've still had the same views."

Judges Cancels California Execution

SAN FRANCISCO — Facing sharp questions from a federal appellate panel and concerns about a drug used in lethal injections, a federal judge in California has canceled what would have been California’s first execution in more than four years.

Albert G. Brown Jr., 56, was convicted in 1982 of raping and strangling a 15-year-old girl in Riverside, Calif., two years before and had been scheduled to die by lethal injection Thursday night.

But late Tuesday, Judge Jeremy D. Fogel of Federal District Court in San Jose issued a stay after a three-judge panel of the United States Court of Appeals for the Ninth Circuit ordered him to again consider the case.

The stay came a day after California officials announced that the state’s supply of sodium thiopental, a barbiturate used in executions, was good only until Friday, a revelation that seemed to shock the appellate panel. “It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug,” the panel wrote.

In his stay, Judge Fogel seemed to agree, and indicated that he had been blindsided by the state’s admission about the drug’s expiration, calling it a “fact that the defendants did not disclose to this court.”

Mr. Brown’s execution would have been the first in California since 2006, when Judge Fogel effectively halted executions in the state after finding various deficiencies in the state’s methods. Since then, the state says it has addressed those problems by revamping regulations surrounding executions and building a new death chamber at San Quentin State Prison.

Judge Fogel ruled last week that Mr. Brown was ineligible for a stay, but legal questions and challenges continued to percolate. On Monday night, Gov. Arnold Schwarzeneggergave Mr. Brown a brief reprieve, pushing the execution to Thursday from Wednesday. The appellate panel weighed in later that night, raising questions about the constitutionality of the state’s new protocol for lethal injection using a three-drug cocktail.

Virginia to execute first woman in almost 100 years

Despite IQ of 70-72, grandmother expected to die by lethal injection on Thursday

Barring a last-minute reprieve from the US Supreme Court, 41-year-old Teresa Lewis will on Thursday become the first woman to be executed by the state of Virginia in almost 100 years.

Abolitionists paint Lewis as a classic example of why capital punishment is flawed, saying the mother and grandmother has diminished mental faculties and was taken advantage of by smarter accomplices.

But with an IQ hovering at 70 or above, Lewis is considered fit for trial in Virginia and she pleaded guilty to hiring two men to murder her husband and stepson to pocket their 350,000-dollar life insurance policy.

Unless the Supreme Court intervenes, she will die by lethal injection on Thursday, the first woman to be put to death in Virginia since Virginia Christian, a black 17-year-old who died in the electric chair in 1912.

Lewis met Rodney Fuller and Matthew Shallenberger in a Walmart superstore. Soon she began an affair with the 22-year-old Shallenberger and encouraged her 16-year-old daughter to get together with Fuller, who was 19.

Lewis admits she left the door of the family trailer in rural Pittsylvania County open in 2002 so the two young accomplices could enter and shoot her husband and his 25-year-old son, who was in the military.

All three pleaded guilty. The triggermen got life in prison, but Lewis, who was deemed fit to stand trial, was sentenced to death as the mastermind of the killings, or in the words of the judge "the head of this serpent."

His summation is far from the portrayal that Lewis supporters offer -- that of a borderline mentally disabled woman, who struggled with a behavioral dependency disorder and was addicted to prescription drugs.

Regardless, why is she to be executed when she should have been handed life without parole like the two men who actually carried out the murder, they ask.

"The issue in the case is not that Teresa Lewis is a woman and should be treated differently," Richard Dieter, executive director of the Death Penalty information center, told AFP.

"But it would be grossly unfair if the one person among those involved who is probably the least danger to society, who is certainly no more guilty than those who carried out the murders and whose disabilities call out for mercy, is the only person scheduled to die for this crime."

The Supreme Court has ruled against the execution of the mentally impaired under the US Constitution, which prohibits cruel and unusual punishment.

But both the Virginia Supreme Court and a federal appeals court have ruled that Lewis could function normally in society.

Lewis's lawyers argue that new evidence, including her low IQ, has appeared since her trial that should prevent her execution.

The key piece of evidence they want considered is a letter from Shallenberger, who killed himself in jail in 2006, in which he claims full responsibility for the murder plot and suggests he pushed Lewis into it.

"From the moment I met her I knew she was someone who could be easily manipulated," he allegedly wrote. "Killing Julian and Charles Lewis was entirely my idea. I needed money, and Teresa was an easy target."

But Virginia governor Robert McDonnell on Friday denied clemency, saying he could "find no compelling reason to set aside the sentence that was imposed by the Circuit Court."

His statement said Lewis had admitted "heinous" crimes and noted that no doctors had concluded she was mentally disabled under Virginia law, which sets the bar at exactly 70 on the IQ scale.

With three nights to go before she is escorted to the death chamber, Lewis's lawyer James Rocap told AFP she was sad but resigned to her fate.

"She is very disappointed... she wants to live, but she has a remarkable, spiritual peace about her and she has said that whatever happens she would be a winner. She's relying I think very strongly right now on her faith to help her go through this."

If Lewis is executed on Thursday, she will become only the 12th woman to be executed in the United States since the death penalty was reintroduced in 1976. In that time 1,215 people have been executed.

The United States is among the countries that execute the most people each year, along with China, Iran, and Saudi Arabia.

Update:

Was emailed this video on the case

Supreme Court Blocks Texas Execution

Minutes before Hank Skinner was scheduled to be executed this afternoon, the U.S. Supreme Court issued a stay, possibly allowing him access to the DNA testing he has been seeking for a decade.

DNA evidence from the crime scene in the case could prove Skinner’s innocence or guilt, and thousands of Innocence Project supporters have emailed Texas Gov. Rick Perry in recent days urging him to grant a stay so testing can proceed.

Skinner’s wife, attorneys and others will discuss the case – and these last-minute developments – tonight on CNN’s Larry King Live.

Read more:

Associated Press: High Court Blocks Texas Execution

Call on Gov. Perry to Stay Texas Execution so DNA Testing Can Be Done

Hank Skinner is set to be executed one week from today in Texas despite untested DNA evidence that could prove his innocence or guilt. Can you spend 30 seconds right now to call on Gov. Rick Perry to stay the execution so DNA testing can be conducted?

The calls for a stay gained urgency today as Texas’ highest criminal court refused to intervene in the case, meaning Perry is among Skinner’s final hopes. Skinner’s attorney Rob Owen issued the following statement today:

"We remain hopeful that the U.S. Supreme Court, which has often found it necessary to correct egregious injustices in Texas capital cases, will intervene to protect Mr. Skinner’s right to pursue that DNA testing in federal court. We also trust that Governor Perry, having heard the voices of Texans insisting that the death penalty not be carried out while there are unresolved doubts about a defendant’s guilt, will do the right thing and postpone Mr. Skinner's execution until all the facts are in.

"Time is growing short, and ultimately someone must have the courage and the common sense to step forward and ensure the reliability of this verdict through the best available scientific technology."

Read more about Skinner’s case.

I spoke too soon. Texas judge rescinds anti-death penalty ruling

By JUAN A. LOZANO (AP) – 21 hours ago

HOUSTON — A Texas judge criticized for declaring the death penalty unconstitutional took back his controversial ruling Tuesday but scheduled a hearing for next month to hear evidence on the issue.

State District Judge Kevin Fine said he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person. Fine is a judge in Harris County, which sends more inmates to death row than any other county in the nation.

During a court hearing Tuesday, Fine rescinded the ruling he made last week in granting a pretrial motion in the capital murder case of John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.

Green's attorneys argued Texas' death penalty statute violates their client's right to due process of law under the 5th Amendment because hundreds of innocent people nationwide have been convicted, sent to death row and later exonerated.

Fine took back his ruling but asked Harris County prosecutors and defense attorneys to submit motions on the due process issue by April 12. Fine will then have an evidentiary hearing April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.

Casey Keirnan, one of Green's defense attorneys, said the case is "headed in the exact direction we want it to go."

"This is the very first legal proceeding where a court is going to look into the issue as to whether or not we have executed innocent people in Texas," Keirnan said. "It's now taken on a life I've never dreamed it would. It's so amazing to me."

Keirnan said he and co-counsel Robert Loper still are determining whom they might call to testify at next month's hearing. But he said it might include officials connected to the case of Cameron Todd Willingham, whose 2004 execution for the deaths of his three daughters in a 1991 house fire near Corsicana is now being questioned.

Prosecutor Kari Allen was pleased Fine rescinded his order.

"However, it is unfortunate that we will not be able to proceed more quickly with the actual trial of the case," she said.

Tuesday's decision will delay the trial, which had been set to begin with jury selection at the end of this month.

"We believe that the law in this area is well-settled, and we are confident that a review of the state's brief will clarify that the death penalty can be fairly and properly sought in the state of Texas," said Chief Appellate Prosecutor Alan Curry.

Fine, a Democrat who is heavily tattooed and says he's a recovering alcoholic and former cocaine user, declined to comment Tuesday on why he took back his ruling.

But he previously said there was no precedent to guide him in resolving the due process issue raised by Green's defense attorneys.

Fine said in his decision last week that it is safe to assume innocent people have been executed.

Texas Attorney General Greg Abbott last week called Fine's ruling one of "unabashed judicial activism." Gov. Rick Perry also slammed it, saying he supports the death penalty as do the majority of people in Texas.

Fine said he is not legislating from the bench.

Last year, the state executed 24 people, including six cases from Harris County. Three people have been executed so far this year, none from Harris County. A fourth inmate, from Bexar County, is set for execution Thursday.

Judge declares death penalty unconstitutional

By BRIAN ROGERS HOUSTON CHRONICLE

March 5, 2010, 12:03AM

Karen Warren Chronicle

Judge Kevin Fine, shown Thursday, was elected to the 177th District Court in 2008.

A Houston judge on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed.

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It's safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society's standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don't think society's mindset is that way now.”

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr.

Loper said he and Keirnan were pleased by Fine's ruling, which will be appealed and almost certainly reversed.

“It's pretty traditional in these cases to file as many motions as you can and try to find something the judge finds approaches unconstitutionality,” Loper said.

If Fine's ruling were to be upheld, it effectively would take away the option of the death penalty in Green's case.

In their motion, Loper and Keirnan assert, “The system that determines who should die in Texas is truly ‘broken.' ”

They argued, and Fine agreed, that the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violate the Eighth and 14th Amendments to the U.S. Constitution prohibiting cruel and unusual punishment and guaranteeing the right of due process.

DA: ‘It has no basis in law'

Green, 23, is accused of fatally shooting a Houston woman and wounding her sister on June 16, 2008.

Harris County District Attorney Pat Lykos issued a statement disagreeing with Fine's ruling.

“Words are inadequate to describe the Office's disappointment and dismay with this ruling; sadly it will delay justice for the victims and their families,” the statement said. “We will pursue all remedies.”

The statement noted that the Texas Court of Criminal Appeals and other appellate courts consistently have rejected the same arguments.

“We respectfully, but vigorously, disagree with the trial judge's ruling, as it has no basis in law or in fact,” Lykos wrote.

On Thursday, Texas Attorney General Greg Abbott's office issued a news release calling Fine's ruling “an act of unabashed judicial activism.” Abbott offered to help the Harris County District Attorney's Office appeal the decision. Fine, the statement said, ignored U.S. Supreme Court precedent in granting the motion.

“We regret that the court's legally baseless order unnecessarily delays justice and closure for the victim's family — including her two children, who witnessed their mother's brutal murder,” the statement said.

Fine's decision is unlikely to withstand appellate review, said Sandra Guerra Thompson, professor at the University of Houston Law Center.

“You never know, but I don't see it happening at this time,” Thompson said. “Technically, they're bound by precedent. There are laws on the books that have ruled on this type of question.”

On bench since 2008

Thompson said trial judges sometimes grant rulings that are unlikely to stand up on appeal to start a dialogue in the judicial branch.

“If they feel strongly enough, sometimes they'll grant a motion like this to buck the system, just to stir the waters,” Thompson said.

Fine, a judicial maverick, was elected in the 2008 Democratic near-sweep of Harris County's benches. A recovering cocaine addict, the judge came under fire last year for questioning a victim during the punishment phase of a rape trial.

After a jury found a man guilty of aggravated sexual assault, Fine challenged the victim's version of events, including why she would have been on top during the rape.

Green faces the death penalty in the robbery and shooting death of Huong Thien Nguyen, 34.

Police said she and her sister, My Huong Nguyen, had returned to their home in the 6700 block of Bellaire Gardens about 1:20 a.m. when Green approached them, demanded money and shot them.

Huong Thien Nguyen died at the scene.

Report: Texas continues to execute mentally retarded prisoners

It is unconstitutional to execute mentally retarded prisoners in the United States. The state of Texas, however, appears to have found a loophole, according to a published report.

Psychologist George Denkowski, an expert witness oft-used by Texas prosecutors, has been utilizing "junk science" to elevate the intelligence evaluation scores of mentally deficient death row prisoners, according to a new report in The Texas Observer.

In the Supreme Court's 2002 ruling on Atkins v. Virginia, Justice John Paul Stevens wrote, "Because of their disabilities in areas of reasoning, judgment, and control of their impulses ... [the mentally retarded] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Because of this, the justices found it "cruel and unusual" to put the metally deficient to death, leaving it to the states to establish a framework by which such individuals could be identified in capital cases.

However, Texas Governor Rick Perry rejected a bill that would have established rules to determine who is mentally retarded. Left grasping, courts invented their own criteria, turning to psychologists for the complicated evaluations.

Having played a key part in two-thirds of the state's Atkins appeals, Dr. George Denkowski has built a lucrative practice off ensuring the mentally retarded are executed, his critics say. Denkowski's reputation for declaring prisoners fit to die has earned him "almost Dr. Death status," attorney Robert Morrow told reporter Reneé Feltz.

For $180 an hour, the 30-year veteran psychologist would evaluate a prisoner's mental standing. For an additional $250 an hour, he would testify. And Denkowski almost always worked for the prosecution, the Observer noted.

After his evaluation of mentally retarded prisoner Daniel Plata was thrown out by a Texas judge, who called Denkowski's methods "fatally flawed," his critics became emboldened. Dr. Jerome Brown, who had worked on several of Denkowski's cases in the past, filed a complaint with the state licensing board for psychologists, charging that Denkowski was unethically altering testing methodologies to drive adaptive behavior scores higher.

"It's essentially junk science," Brown argued.

However, "when [Denkowski] went into the courtroom, he was the expert," Feltz told RAW STORY in an exclusive interview. "He could give concise summaries of what he found when he diagnosed these people. The defense psychologists, they would go in there and kinda ramble, they're not as polished, they haven't been through this 20 times already and the judges just found Denkowski much more convincing."

In one case, she added, Denkowski went as far as to argue that because a prisoner was a Mexican immigrant and did not have the benefit of a public education in the United States, the state could reasonably assume that had he been educated stateside he would be a functioning adult, therefore was fit to execute.

"It's a bizarre argument," Feltz explained, "but he knew how to say that in a polished way to the judges. The judges weren't that well informed about science to begin with, so they accepted it."

Since complaints were lodged against Denkowski, the Texas Board of Examiners of Psychologists has found that at least three of his cases were littered with scoring errors. Now Denkowski is facing a review by the state licensing board on Feb. 16, when his career as a psychologist could end.

Already, three of the Atkins appeals he testified on have been placed on hold pending the outcome of the hearing. Denkowski evaluated 29 men in total; some have already been executed.

If the state removes his license, nearly all of those cases could once again be called into question.

"It's a labyrinthine process," Feltz explained, but the possibility exists that some of the prisoners Denkowski evaluated could be spared their lives. "[The three cases on hold] will pose an interesting bellwether as to how the other cases may play out."

"We're talking about people who are basically guilty of the crimes they're accused of committing," she continued. "... So, it's hard for a lot of people to look at them and say, 'I have a lot of compassion.' But the Supreme Court decided that if you're going to have this death penalty machine, there's a certain way in which it should operate. Executions should not be used in capital cases in which the defendant is found to be mentally retarded."

Feltz's report was produced in conjunction with the investigative fund at The Nation Institute.

Group Gives Up Death Penalty Work

The ALI, this "group of smart lawyers and judges . . . has said that the death penalty in the United States is a moral and practical failure.”

Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at theUniversity of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”

The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.

The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.

Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said. “What this does is pull the plug on the whole intellectual underpinnings for it.”

The framework the institute developed in 1962 was an effort to make the death penalty less arbitrary. It proposed limiting capital crimes to murder and narrowing the categories of people eligible for the punishment. Most important, it gave juries a framework to decide whom to put to death, asking them to balance aggravating factors against mitigating ones.

The move to combat arbitrariness without giving up sensitivity to individual circumstances is known as “guided discretion,” which sounds good until you notice that it is a phrase at war with itself.

The Supreme Court’s capital justice jurisprudence since 1976 has only complicated things. Justice Harry A. Blackmun conceded in 1987 that “there perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required.”

That was an understatement, Justice Antonin Scalia said in 1990. “To acknowledge that ‘there perhaps is an inherent tension,’ ” he wrote, “is rather like saying that there was perhaps an inherent tension between the Allies and the Axis powers in World War II.”

Justice Scalia solved the problem by vowing never to throw out a death sentence on the ground that the sentencer’s discretion had been unconstitutionally restricted.

In 1994, Justice Blackmun came around to the view that “guided discretion” amounted to “irreconcilable constitutional commands.” But he drew a different conclusion than Justice Scalia had from the same premise, saying that “the death penalty cannot be administered in accord with our Constitution.” He said he would no longer “tinker with the machinery of death.” The institute came to essentially the same conclusion.

Some supporters of the death penalty said they welcomed the institute’s move. Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.”

Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.

But opponents of the death penalty said the institute’s move represented a turning point.

“It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said. “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970. “The death penalty was an abstract issue of little interest to me or my fellow students,” Professor Gross said. But he remembered being impressed by the institute’s work, saying, “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”

Things will look different come September, Professor Gross said.

“Law students who take first-year criminal law from 2010 on,” he said, “will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”

Texas Religious Leaders Asked, "Is the Death Penalty Immoral?"

The storm over the Cameron Todd Willingham case has focused publicattention on the death penalty and stirred debate in the Texas governor'srace. Willingham was executed in 2004 for setting a fire that killed histhree children. He maintained until his death that he was innocent, andevidence in the case presents a mixed picture. Several independent expertshave challenged whether it was arson. The governor and the prosecutor areconfident he was guilty.

In Texas, more than 400 people have been executed since capital punishmentwas reinstated by the Supreme Court in 1976. Ours is the busiest deathchamber in the nation - and Texans overwhelmingly back the death penalty.Polls indicate that nearly three-quarters of Texans support capitalpunishment.

What is the moral dimension? Supporters say the question is not whetherthe state is justified in taking a life, but when - for example, inself-defense or in order to save someone else's life. There is theargument of deterrence. And justice - "an eye for an eye."

Opponents make two arguments: 1) the death penalty is immoral and 2) thedeath penalty is flawed because an innocent person could be put to death.

So here's the question: Is it moral to support capital punishment? Or areTexans immoral because they support the death penalty?

The responses from our Texas Faith panelists are varied, provocative and well worth reading amid this political and faith-based debate:

JOE CLIFFORD, Pastor of First Presbyterian Church of Dallas

Jesus was once asked his opinion on the death penalty when a woman was caught in adultery, a capital offense in his day. (I've always wondered where the man was in this story!) Jesus responded, "Go ahead and stone her ... just let the one who is without sin cast the first stone." No one could; which is to say no one is moral enough to impose the death penalty.

Having said that, I could not tell the relatives of a murder victim they are immoral because they support the death penalty for the person who killed their loved one. They don't want to hear statistics about the ineffectiveness of capital punishment in deterring crime, nor how economics affect the equity of our system. They don't care that racism distorts the justice system as in Texas, 12% of the population is African American, but 40% of death row inmates are black. They don't care that innocent people might be executed in the name of expediency. They just want justice for their loved one. I can't say that's immoral.

However, killing the killer will not provide that justice. It cannot fill the void created by the immoral act of murder. Rather, for all the reasons listed above it compounds the immorality. Therefore I cannot support capital punishment.

DARRELL BOCK, Research Professor of New Testament Studies, Dallas Theological Seminary

Capital punishment? Only in extremely clear cases for very grievous crimes. If there is any doubt at all about the evidence, it should not be instituted. Judges should be given latitude here as legal experts. The dignity of human life is precious, which is why its application should be limited. But disregard for human life should result in risk of losing one's life as one who does not respect the community that requires respect for life to function. The fact that Scripture has the category means it is not immoral. Mass murders and other intentional violent crimes designed to take several lives should be on that list. This is not revenge, but a form of corporate justice. Taking multiple lives intentionally reflects a lack of respect for human life.

DEAL HUDSON, President of Morley Publishing Group and Director of Inside Catholic.com

I'm not going to call anyone "immoral" because they support the death penalty. It was only a short time ago John Paul II revised the Catholic Church's teaching on that issue. Until that time I supported the death penalty, but upon reading the argument in the Holy Father's "The Gospel of Life" I was convinced that "bloodless means" should be used whenever the common good can be protected without taking a life. I don't think the notion of retribution is a safe one to invoke -- there are too many subjective elements. Although it is legitimate for a murderer to pay the "price" of his or her crime, the main consideration should be protecting others from potential harm. It seems to me that a life sentence, without parole, fits both criteria. All states should have a true, life without parole, sentence for first degree murder. Otherwise, states are encouraging the use of the death penalty by prosecutors and jurors who don't trust parole boards.Texans are no more immoral than folks from other states, with or without a death penalty, though I know many Texans who are proud of their purported immorality, which they revel in.

GEOFFREY DENNIS, Rabbi Congregation Kol Ami in Flower Mound

The issue of the death penalty being immoral has come up in Jewish tradition, but only obliquely, and ends up expressing itself through mostly through the second issue. Given that the Torah itself imposes capital punishment for some offenses, there have been few direct attacks on the intrinsic morality of judicial execution. Rather, in elaborating on the spase criminal procedures provided by the Torah, the Talmud surrounds the issue with a flurry of witness and procedural requirements that effectively limit, if not utterly prevent, a capital conviction. Thus, for example, for the death penalty to be imposed, there have to be two eye witnesses to the murder, both witnesses have to have direct, unhindered view of the act as it is committed, and one has to offer a warning to the perpetrator to the effect of "Hey, don't you know what you are doing is wrong?" The tension between sages on this issue is evident in a reported discussion where Rabbi Akiba declares a court with but one execution on its record in seventy years should be considered a "bloodthirsty court." Another Sage laments this attitude, claiming it encourages the proliferation of murderers among the people. History has also had a hand in shaping Jewish attitudes. In many medieval lands, the power of execution was taken from the jurisdiction of Jewish courts. In modern states, also, the power of execution is reserved for state courts. The end result is that many modern Jews now reject capital punishment in principle as well as in practice. In the modern State of Israel, execution is a penalty reserved for those guilty of crimes against humanity, and has only been carried once in it's 60 year history. The run of the mill terrorist/mass-murderer faces a life behind bars, but not death at the hands of an Israeli court. The Talmud understands the unique nature of capital punishment, that it is a penalty which, wrongly administered, cannot later be corrected or compensated. Given the now-well-documented record of false convictions in Texas, it seems to me the moral response is to suspend all executions until a fairer, bettered safe-guarded, radically reformed system can created. Which, the way things go, means an end to the death penalty for the foreseeable future.

WILLIAM LAWRENCE, Dean Perkins School of Theology, Southern Methodist University

A brief clarification is in order. It is not precisely correct to say that "Texans ...support the death penalty," although it is almost certainly true that a majority of Texans do and it is without question that the controlling forces in state politics do. Let me be clear in stating that I am a Texan who does not support the death penalty.
The problem is that two moral virtues are in conflict with each other. One is the standard of justice which declares that the only appropriate way to balance the evil of taking another's person's life is to have someone who commits a murder lose his or her own life. The second is the standard of justice which declares that the only appropriate way to be sure that errors in judgment are correctable is to avoid making judgments that are permanent and uncorrectable.
From the perspective of the first moral virtue, the only appropriate punishment for one who commits murder is to kill the murderer. From the perspective of the second moral virtue, the only appropriate way to make absolutely sure that no one falsely accused of murder is being killed is to use some punishment short of death.
When two moral virtues are in conflict, Christians must choose the one that inflicts less harm. In my view, punishment short of the death penalty inflicts less harm--to the perpetrator who may be falsely accused and to the society that claims a right to inflict the ultimate penalty even though its judgments may only be penultimate at best.

NITYANANDA CHANDRA DAS, Minister ISKCON Hare Krishna Temple, Dallas

Everything has its proper utility, and a man who is situated in complete knowledge of the self knows how and where to apply a thing for its proper utility. Similarly, violence also has its utility, and how to apply violence rests with the person in full knowledge of the eternality of the self. Although the justice of the peace awards capital punishment to a person condemned for murder, the justice of the peace cannot be blamed, because he orders violence to another person according to the codes of justice. In the Vedic scriptures it is supported that a murderer should be condemned to death so that in his next life he will not have to suffer for the great sin he has committed. Therefore, the government's punishment of hanging a murderer is actually beneficial. Such a sinful person who has murdered is better suffering in this life rather than greater sufferings in his next lives. A surgical operation is not meant to kill the patient, but to cure him.
Capital punishment also stands as a powerful deterrent for future criminals. Politicians, afraid of being implicated in their own laws, often shy away from a strong stance.

AMY MARTIN, Executive Director of Earth Rhythms and editor Moonlady Media

There is absolutely nothing in the Tao Teh Ching that supports capital punishment. Leaders are mandated to protect the people. But once a violent criminal is removed from society, the people are protected. The state's job is done. Nothing else need occur but to let "wu wei," the inherent way of nature, to take its course on the criminal until they age out and die.
If the crime warrants the most severe of punishments, isn't it far worse to fester in jail for a lifetime? Create the possibility of atonement by lining the jail cell with photos of the criminal's victims, or piping in audio of the victims' survivors relating their anguish. Let's get creative about it. Brutishness is so last millennium.
Fairness is a central value of Taoism. If Cameron Todd Willingham is executed for arson that kills children, then why don't we execute ALL arsonists who kill children? Why execute the bomber who kills dozens of people, but not the serial rapist who murders a score of women? Of course, then the state would be in the business of killing LOTS of people, much like countries whose criminal justice systems we consider barbaric. The decision to apply the death penalty centers at least partly on the sympathetic worth of the victim. Why are some victims rated higher than others?
It doesn't logically seem that the death penalty would be a deterrent to heinous crimes. Criminals who commit such acts consider themselves too smart to get caught, or the crime is done while they were high on drugs or emotions and the potential of the death penalty never crossed their minds. If it were a deterrent, states with the death penalty would have lower murder rates, but that's not the case.
People who support the death penalty are reacting emotionally and haven't thought it through with the higher mind. But really, who are we to play God? Shouldn't we be conservative in all matters that end in death? It's not a mistake we can fix. How can we rationalize that the death penalty is disproportionately applied to minorities, the mentally ill and poor?
Eye-for-an-eye vengeance sets up a never-ending cycle of retribution, one that some global areas are still mired in. It sends the message that murder for vengeance is an acceptable concept. Surely we are above all that by now. But alas, not Texas. Lone Star comedian Ron White wryly observed, "Other states are trying to abolish the death penalty. Mine's putting in an express lane."

CYNTHIA RIGBY, Professor of Theology, Austin Presbyterian Theological Seminary

I know my response to this question will be controversial, but I believe capital punishment is immoral. As a Christian believer, it is my conviction that God is a God of justice, but that the justice of God is grounded not in a literalistic "eye for an eye," but in God's grace and God's mercy. (Interestingly, btw, a strong case can be made that the "eye for an eye" rule of the Old Testament was not as much about demanding equitable retribution for crimes that had been committed, but for protecting the perpetrator from being OVERPENALIZED for his or her crime. In other words, if one person puts out the eye of another, the most that can be taken from the guilty one is an eye - not both eyes, not a leg, not a life, but "only" an eye).
While I am tempted to launch into a lengthy theological discourse about the relationship between justice and mercy in various New Testament texts, let me spare everyone and instead put forward two "scenes" from my own heritage and life that have fed my reflection on the death penalty. The first has to do with remembering my maternal grandfather, Frederick Goddard, whom I never knew. Goddard was a Salvation Army preacher in Macalaster, Oklahoma, in the 1930s and 40s (long before "DNA evidence"). He died when my mom was only twelve years old. One of the ministries to which he was most committed was sitting with prisoners who were on death row. He frequently walked them to their deaths. And one of the most salient memories my mother has of him is how haunted he was not only by the deaths of these men, but by his belief that some were innocent. My mother (who is hardly ever visibly shaken) is still visibly shaken when she recalls the time her father announced, one evening, that a man he had walked to the death chamber the week prior had too late been found to be innocent.
My second "scene" is from 11 years ago, shortly before the execution of Karla Faye Tucker. You might remember that the late '90s was the time when the "WWJD?" ("What Would Jesus Do?") movement was in full swing. In a class I was teaching, I asked my mainly-mainliner seminary students if they saw any value to "WWJD?," and if they thought we should do what Jesus would do, if we were pretty clear on exactly what that was. Every student in the class (20+, as I recall) answered, emphatically, "yes!!"
Since the biggest issue in the news that week was that Tucker was asking for a stay of execution, I spontaneously asked: "Would JESUS execute Karla Faye Tucker?" "No!" all the students answered. Feeling like I was on a roll, I then asked, "Well, then: should WE execute Karla Faye Tucker?"
Silence in response to a question that I thought was a no-brainer, in light of the conversation. Suddenly, the mood of the class shifted. My students acted indignant; as though they had been betrayed. A senior student shot his hand in the air, declaring that he thought it would be "presumptuous for us to assume we could do what Jesus should do." "We need a new question," he said: "WWJWUTD?" "What would Jesus want us to do?" he asked, looking around at his classmates. And then he answered: "Jesus would want us to leave forgiveness to him, and to
EXECUTE Karla Faye Tucker."
We took another vote, and all but 2 of my students agreed with him.

KATIE SHERROD, Independent writer/producer, Fort Worth

The Episcopal Church has consistently made clear its opposition to capital punishment, most recently on June 20, 2001 when the Executive Council - the body that governs the Episcopal Church between triennial General Conventions -- passed a resolution entitled "Recommitment to abolish the death penalty." Its wording mirrored that of statements dating back to 1958.The Episcopal Church's 1958 statement opposed capital punishment "on a theological basis that the life of an individual is of infinite worth in the sight of Almighty God; and the taking of such a human life falls within the providence of Almighty God and not within the right of Man." This position was reaffirmed at the 1969, 1979, 1991, and 2000 General Conventions. The 2001 resolution was passed in the immediate aftermath of the June 11, 2001 execution of Timothy McVeigh, the man who bombed the Federal Building in Oklahoma City. At a time when emotions were high, the church felt it was more important than ever to raise a voice in opposition to the death penalty - a hugely unpopular stance at the time.So why speak out then? Here's why: "In our baptismal covenant, we respect the dignity of every human being, and commit ourselves to strive for justice and peace among all people. The Church will continue to decry the revenge of state-sanctioned homicides. We abhor the racism and economic injustices evident in our criminal justice system." So is it moral to support the death penalty? I do not think so and for myself, I cannot support it. With the repeated discovery that our justice system has sentenced innocent people to death, it is harder than ever to justify capital punishment. Texans are at heart a fair-minded folk, and I believe eventually the faults in our system will become so glaringly apparent that even this state will realize the immorality of the death penalty.

BRIAN SCHMISEK, Dean School of Ministry, University of Dallas

Capital punishment rouses emotion like few other issues. For many, the problem is not only that a person dies, but that the state itself executes the person. As we live in a democratic republic, we the people are executing fellow human beings. Even so, many in Texas favor the death penalty. In this debate one side often points to the unrepentant malicious criminal who "deserves to die" while the other side discovers the wrongly convicted and executed.
Though the Catholic Church "does not exclude recourse to the death penalty" it also makes clear that in today's society, "the cases in which the execution of the offender is an absolute necessity are very rare, if not practically non-existent" (Catechism of the Catholic Church §2267). In short, lifelong imprisonment is to be preferred to execution.
Our stance on the issue says more about us than about the person being executed. We are better people when we are showing compassion rather than making arguments to justify killing. Instead of arguing over who deserves to die, we would do well to argue over how to bestow compassion in a world that desperately needs it.

DANIEL KANTER, Senior Minister First Unitarian Church of Dallas

When I was a student minister in St. Louis I used to attend vigils outside the Potosi Prison on nights of executions. People of faith gathered with candles and sang "Amazing Grace" in hopes of sending a message that the death penalty is wrong and extending a global prayer of hope for us all. The Ku Klux Klan also showed up to drink beer, to blare loud music, and to cheer at the hour of execution. We said it was not moral to take a life for any crime no matter how heinous because the penalty never deters anyone bent on murder and because there are too many mistakes in the justice system. The Klan just loved revenge. As a person of faith the moral issue of justice is that all people have an equal chance at dignity. The death penalty system is too flawed to uphold this. And in the end the murder of a murderer is only momentary revenge. The best revenge is to force the criminal to face his acts for life, do reparative work, be forced to do some soul searching, and if not all that, to confront unbearable isolation and the highest level of boredom. The punishment itself is the immoral element here. We have a choice whether to stand on the sidelines and let it continue or hold up a candle and confront ourselves about this issue.

RIC DEXTER, Men's Division Chapter Leader, Nichiren Buddhist Soka Gakkai lay organization

There is debate within Buddhism about the taking of life. Theravadan canon will say 'never", even in defense of your own life. Mahayana schools vary, saying there is no justification, or self defense, the protection of others, and even saving a criminal from bringing further bad effect upon himself, are justification. Buddhist traditions agree, however, that a life should never be taken to post a warning, or as a punishment, or to satisfy a desire for vengeance.In his dialogue with Arnold Toynbee, Daisaku Ikeda explains this saying, "...life, as an absolute entity worthy of the deepest respect, must never be treated as a means of achieving anything other than life itself. When social restraint is necessary it is far better to devise a method that does not deny life. The use of the death penalty as a warning manifests a regrettable tendency that has long plagued human society. That tendency is the habit of undervaluing life."We live in a society of laws, where hopefully most of those who commit crimes are apprehended and incarcerated. In doing so we have taken the measures necessary for self defense and for the protection of others. Beyond that, a determination to inflict the penalty of death is to say that one life has value, and another does not. Buddhism teaches that all life has value.The question asked whether it is moral to support the death penalty, and if those who do are immoral. I have to ask the question differently, and each person must ask it of themselves. If I support the taking of a life, what are my reasons? If my most honest answer is that I think I will suffer less because someone else has died, or that the taking a life will satisfy my thirst for vengeance, or that causing another's death will assuage my anger, or that the life I wish to take has no value, then my cause reflects my lowest nature. The universal truth manifests itself through the effects of our thoughts, words, and actions. The effects in my life will reflect those basest energies. I will not determine to take a
life that poses no danger to myself or others. I will not ask you to do it for me.

GERALD BRITT, Vice-president of public policy, Central Dallas Ministries

I can understand the inclination of some supporters of the death penalty. There any number of people who have suffered terrible losses due to the cruelty and criminality of another human being. Society has every right to protect itself from those individuals and the probability that they may commit crimes as heinous or worse than the ones for which they are either incarcerated or for which it has been deemed that they worthy of capital punishment. In doing so the state is saying that the harm inflicted on an individual makes that person so dangerous that we can no longer risk their living among us. That is a strong statement.
As one whose family has incurred such a loss a couple of years ago, I can understand that inclination on a very personal level. The death of a loved one at someone else's hands is a horrific experience for those who are left behind. And, in our case, we know exactly who committed the murder. However, the charge against that person doesn't rise to the level of the death penalty, but we've made the conscious decision that we not only wouldn't want the death penalty imposed; the circumstances are such that we're not even seeking life imprisonment. Again, different circumstances prevail.
In other circumstances, on principle, it is extremely difficult for me to support the death penalty. My opportunity to meet with and do some work with Dallas County's exonerees, has shown me that it is indeed possible for citizens to be wrongfully convicted and incarcerated. Whether it was through shoddy police work, mistaken eyewitness identification, predatory prosecution and misconduct, a significant portion of these men's lives were taken away. They had a trial and were 'lawfully' convicted. Yet they were innocent. However tragic that circumstance is (and it is indeed), these men are getting an opportunity to rebuild their lives and reestablish themselves in society.
But I also can't help but remember that Tim Cole, a young man wrongfully incarcerated, died in prison and has been found innocent of the crime for which he was imprisoned, posthumously. These facts, make it difficult for me to believe that we have not already put to death innocent men and women. And the fact is whether it is ten, 50 or even one - we are not carefully reviewing the circumstances under which we are imposing let along applying the death penalty. And that is moral issue enough to have serious questions about it.

LARRY BETHUNE, Senior Pastor University Baptist Church, Austin

I cannot speak from other religious points of view, but from a New Testament Christian point of view, the death penalty is immoral. It has no place in a tradition which emphasizes grace, mercy, and healing from violence. At the heart of the Christian message is the belief that no person is beyond redemption in the eyes of God. Vengeance belongs to God alone, and the justice of God is filled with mercy. The death penalty demeans the society which uses it and the persons required to apply it.
The United States is one of the last nations to insist on practicing capital punishment despite strong stands taken against it by several Christian denominations. The current system is long and torturous, not only for perpetrators but for their families and especially for the families of victims. It is open for abuse, and it is always dangerous to give government the power to take life. Since life imprisonment without parole would be an equally effective means of deterrence, justice, and prevention of repeat offense, the death penalty remains a violent form of revenge unbecoming of a people who value human life. The death penalty is irretrievable; there is no remedy when the state executes an innocent person (of which there have been numerous proven cases).
The current system is broken, unequally weighted against the poor and minorities. For all these reasons, the death penalty needs to be abolished and judicial reform focused on the protection of life and the healing of victims of violence.