CAPITAL PUNISHMENT ON TRIAL.

EVEN THOUGH THE PUBLIC STRONGLY SUPPORTS THE DEATH PENALTY, QUESTIONS ARE BEING RAISED ABOUT THE FALLIBILITY, FAIRNESS AND FUNDING OF THE PROCESS.

On Sept. 21, 1999, Illinois' death row doors swung open for inmate Anthony Porter after 17 years in prison. Another man had confessed to the double murder for which Porter had been convicted.

Just the year before, Porter had come within a couple of days of death by lethal injection, but received a stay of execution when attorneys raised questions about his mental capacity. Following this and 12 other Illinois cases (85 nationally) in which death row inmates have been exonerated, the state became the first to suspend the death penalty pending examination of its fallibility.

"Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate," Republican Governor George Ryan declared in January at a Chicago news conference. The General Assembly has earmarked $20 million for improving capital justice, and Ryan's indefinite moratorium was followed by appointment of a committee to study flaws in the system and make recommendations to remedy them.

The Illinois governor's move was almost unprecedented. A year ago, the Nebraska Legislature tried to put a two-year moratorium on executions, but it was vetoed by Governor Mike Johanns, also a Republican. There, the debate centers on whether capital punishment is being applied fairly. After the veto, the Legislature approved a study of homicide cases in the state. The report, due in time for the 2001 session, is to analyze homicide cases spanning more than 25 years, including mitigating and aggravating circumstances; race, sex and economic status of the defendant and the victim; charges filed; result of the judicial proceeding; and the sentence imposed.

RACIAL FACTORS

In at least half a dozen other states, old issues are being raised anew about how and against whom capital punishment is carried out. Anti-death penalty activists long have maintained that race and economic circumstances of defendants as well as victims are disturbingly and disparately related to death sentences. The American Bar Association, in calling for a death penalty moratorium in 1997, cited as a major concern increasing evidence of racial disparity in prosecution or sentencing decisions.

In 1998, Kentucky lawmakers broke new ground in an act prohibiting the execution of a person when evidence establishes racial bias in prosecution or sentencing. The law also required the Kentucky Supreme Court and agencies to open records relating to the death penalty and its imposition. And recently, the federal Justice Department disclosed that a review is under way to determine whether there has been disparate treatment of racial minorities in handing down federal death sentences.

In Illinois, a Chicago Tribune investigation of 285 capital cases in that state described a pattern of inept defense counsel and questionable practices of prosecutors regarding forensic evidence and jury-seating. Around the states, such problems plague even rock solid death cases and extend what most agree is a cumbersome and costly appeals process.

Actions by lawmakers in states and Congress in recent years have sought to improve death sentencing and expedite appeals, with mixed results. Congress eliminated federal funding in 1995 to 20 death penalty resource centers, effectively closing the offices that provided representation to many death row inmates in their federal appeals. At the time, the taxpayer-funded, postconviction defender organizations were seen as contributing to a lengthy, costly appeals process by carrying out a series of legal maneuvers to stop executions.

That same mood was present at passage of the federal Anti-Terrorism and Effective Death Penalty Act of 1996, which restricted federal court review of capital cases. The act applied to state as well as federal prisoners, with the caveat that states provide competent counsel. A host of state legislatures followed with laws addressing competency of counsel and delay reduction in capital cases, but only a handful have centralized offices or teams of defenders funded for the purpose of death row representation. New York's $15 million a year Capital Defender Office is perhaps the best equipped among the states.

Similarly, 1997 legislation in California, sponsored by then-senator, now State Attorney General Bill Lockyer, created the California Habeus Resource Center. The judicial-branch office is designed to speed up death row appeals by providing for more and better paid attorneys to handle cases. State- and county-level public defenders, with varying workloads and experience, often represent death row defendants in post-conviction appeals. A few states rely strictly on court-appointed--and sometimes poorly compensated and reluctant--lawyers.

RAISING THE STAKES FOR APPEALS

Growing numbers of prisoners sentenced to death and executions raise the stakes on the effectiveness of laws to streamline the capital appeals process and improve representation.

Thirty-eight states today have the death penalty, and sentences are imposed in all of those except New Hampshire where lawmakers currently are considering repeal. Kansas and New York reinstated the death penalty in 1994 and 1995, respectively. The death row population in states late last year was more than 3,600; three times what it was just two decades ago.

Ninety-eight offenders were executed in the states in 1999. While this is not the most in any one year (105 in 1951), the pace is quickening. Many executions to date have been in the South; Texas and Virginia alone have carried out more than half of the 494 executions since the Supreme Court allowed reinstatement of the death penalty in 1976. But 30 states in all, many far from the Southern stronghold of capital punishment, now have carried out one or more executions.

The hastening of executions is largely the result of the length of time some defendants have been on death row and the inevitable end to even multiple appeals. Federal and state laws to limit and set time limits on appeals, as well as several U.S. Supreme Court rulings limiting federal court review of state convictions, also appear to be having an impact on the pace of executions. The Bureau of Justice Statistics' annual report on capital punishment released late last year showed that the average time between sentence and execution crept down to 130 months in 1998, which was down from the year before and from a high of 134 months in 1995. Still, this isn't the swift or efficient punishment many death penalty proponents would like to see.

"We established a public policy goal of resolving cases within five years," said Senator Locke Burt of Florida, where a special session on the death penalty was held earlier this year. The session had dual purposes: to address use of the state's electric chair, which was under review by the U.S. Supreme Court, and to take a look at how to expedite appeals. New rules adopted in the session, but currently under review by the state's high court, limit death row inmates in most cases to two appeals in state court. The second appeal, which can be filed in both the trial court and the state supreme court, must come within six months of the first. Florida is among the states that have paid attention to capital litigation, both in its structure and funding. The state office of Capital Collateral Regional Counsel represents all inmates sentenced to death throughout their appeals. Competency requirements for capital counsel are provided for in statute, and an open discovery process and records repository aids capital litigants, as well as others.

MORE EXECUTIONS BY LETHAL INJECTION

"The public in Florida strongly supports the death penalty and doesn't care about the method," says Burt. "What the public cannot comprehend is why it takes 15 years to execute a person who is guilty."

A new law in Florida also offers inmates facing capital punishment the option of lethal injection. Since that enactment, the U.S. Supreme Court decided not to decide whether death in Florida's electric chair constitutes cruel and unusual punishment. Most of the 38 states with a death penalty have moved to lethal injection. At one time 26 states used electric chairs, but today it is the sole method of execution only in Alabama, Georgia and Nebraska.

Other states that have kept an old method of execution on the books, as well as adding lethal injection, include five states which still have gas chambers, three in which death by hanging may be carried out, and three in which a prisoner may face a firing squad. These old methods are rarely used. Since 1976, the firing squad has been used twice, hanging, three times, and the gas chamber, once.

While Illinois Governor Ryan's recent moratorium has focused national attention on how states carry out the death penalty, the General Assembly has been at work for some time on improving capital case handling. The Capital Crimes Litigation Act, approved in 1998, created a treasury trust fund to assist counties in both prosecution and defense in death penalty cases, including everything from investigation and forensic costs to expert witnesses.

"The fund ensures that for no defendant will we have failed to provide adequate resources for his case," says Senator Carl Hawkinson, Judiciary chair and sponsor of the measure. He said that the fund, along with a supreme court study under way of experience and qualifications of attorneys, are big steps toward improving the system.

States vary greatly on the qualifications required of attorneys who handle capital case defense. In California, Indiana and Utah, attorneys must meet general and capital case experience and training requirements. In a few others, statutory law or court rules are loose enough that lawyers with much less expertise in criminal appeals may be handling life or death cases. Legislation currently before Congress would include federally set minimum competency standards for court-appointed defense attorneys.

The death row exonerations and moratorium on executions have had only minor impact on attitudes toward capital punishment, according to Hawkinson.

"The governor, and many of us in the Legislature and in the public still support the state's death penalty," he says. "The same citizens and members want to make sure the process has the integrity it should."

Senate Minority Leader Emil Jones Jr., however, says that mounting evidence of poor police and prosecutorial practices has led him to assemble an ad hoc committee to look not just at capital cases, but others in the system that may have been mishandled. "I would like to back the death penalty as a possible deterrent to crime. But if that many mistakes are being made, it's a serious indictment of the criminal justice system as a whole," he says. His group's recommendations are due out this spring.

Senator Burt in Florida agrees that inadequacies or inefficiencies in the process of capital justice have done more to diminish the public's respect for the judicial system than to squelch their support for the death penalty. As such, he says, elected officials face growing pressure to make the system work better.

The Florida Supreme Court is expected to complete its review of the Legislature's new rules to streamline the appeals process by June 30. Among exemptions that lawmakers provided to the two-appeal rule is to allow condemned prisoners who have new claims of innocence, rather than technical complaints, to bring those forward in additional appeals. Burt has confidence that the Legislature balanced defendants' rights with the interests of victims' families who want closure in these cases. He said his resolve to address the long suffering of victims' families was strengthened when he attended an execution in Florida's electric chair alongside family members who had waited 20 years for that day.

"It's never going to be easy, or cheap, or pretty for the state to execute someone, and I don't think it should be," Burt says. "What we're trying to achieve here is the fair administration of justice."

Donna Lyons heads NCSL's Criminal Justice Program.

STATES OUT OF STEP WITH WORLD VIEW

State policies to expand the death penalty and to allow execution of juveniles and the mentally retarded have set this country apart from its allies around the world. A juvenile offender and five foreign nationals were among those put to death in the states in 1999, prompting an outpouring of opposition from national and international human rights and religious leaders.

Many countries have abolished the death penalty in law or practice. A year ago, the United Nations Commission on Human Rights passed a resolution calling for a moratorium on all executions, and a ban on the death penalty for juveniles and those who are severely mentally retarded.

This move followed German protests of the execution in Arizona of two of its citizens, and stepped-up appeals by Pope John Paul II to end the death penalty. During the pope's visit to St. Louis early last year, the Missouri governor granted clemency to a prisoner who had been scheduled for execution during the papal visit. So far this year, both Texas and Virginia have executed prisoners for murders committed at 17 years of age, despite pleas from the Vatican and the American Bar Association.

Laws of 14 states and the federal government set age 18 as the minimum for which the death penalty may be pursued and applied; and in five states the age is 17. In 20 other states, either statutory law or state attorney general interpretation of U.S. Supreme Court decisions establishes age 16 as the youngest at which a crime committed may result in the death penalty. Oklahoma is one of the latter states, and last year became the first state in 40 years to execute a prisoner who committed murder at age 16. Even so, juvenile offenders represent a small fraction of those inhabiting death rows in the states.

A 1998 Nebraska law prohibited execution both of those under age 18 and those with an IQ below 70. Last year, Texas became the 13th state to prohibit execution of the mentally incompetent. The legislation requires, upon motion, evaluation by at least two mental health experts as to whether the defendant understands that he or she is to be executed and the reason for the sentence.

Texas currently leads the states in numbers of executions and offenders on death row in the state's "Terrell Unit". what arguably is irony--or a new millennium in attitudes about capital punishment--Charles T. Terrell Sr., past chairman of the board of the Texas Criminal justice Department for whom that unit named, recently wrote a letter to the Dallas Morning News expressing his second thoughts about the wisdom of the death penalty.

DEATH PENALTY CHRONOLOGY

1972

The U.S. Supreme Court ruled in Furman v. Georgia that the state's death penalty was arbitrary, and therefore cruel and unusual punishment. The decision effectively voided 40 capital punishment statutes. suspending the death penalty and commuting the sentences of 629 death row inmates.

1972 - 1976

States immediately began rewriting capital punishment statutes to address the problems cited in Furman. Florida's retooled statute came first, and 34 other states followed. Statutes introduced aggravating and mitigating circumstances to be used by judges and juries in imposing death sentences.

1976

U.S. Supreme Court approved these "guided discretion" statutes in Gregg v. Georgia, Jurek v. Texas and Proffitt v. Florida, collectively known as the landmark Gregg decision, and reinstating the death penalty in those states.

1977

Ten-year moratorium on executions in the U.S. ended with Gary Gilmore before a firing squad in Utah. That same year, Oklahoma became the first state to adopt lethal injection as a method of execution.

1994

Kansas reinstated the death penalty, bringing to 37 the, number of states with the death penalty. Since Gregg, 263 offenders had been executed; and death rows held 2,976 prisoners. Federal crime act expanded federal death penalty.

1995

New York State reinstated the death penalty. Congress eliminated federal funding to death penalty resource centers. Number of condemned prisoners topped 3,000.

1996

Federal Anti-Terrorism and Effective Death Penalty Act restricted federal court review in death penalty post-conviction cases.

DECIDING LIFE OR DEATH

Colorado lawmakers this year are reviewing a three-judge panel process they put in place a few years ago for death sentencing. The unique policy moved life and death decisions from a unanimous 12-member jury to a panel of three judges, who must all agree to impose a death sentence. Six murderers have been sentenced by a judicial panel to date, with two of the defendants sent to death row.

Twenty-one states use a unanimous jury for handing down death sentences. In a few of those, the judge can alter the jury's sentence. Judges impose a death sentence with jury recommendation in other states. In a few, the judge sentences without jury recommendation. A 1998 Utah law shifts to juries the responsibility of sentencing defendants who plead guilty to a capital felony. At the request of the defendant, approval of the court and with consent of the prosecution, the court may still sentence in those cases. Juries in Connecticut now deliberate under new rules that give them greater latitude to weigh mitigating and aggravating factors in imposing the death penalty.

Some Colorado legislators have expressed the same frustration with the three-judge panels as they did with the 12-member unanimous jury: that too few eligible offenders receive a death sentence. Discussions in 1995, when the state moved to the judicial panel, acknowledged the likelihood that at least one of 12 jurors would feel philosophically opposed to the death penalty--or reluctant to make a life-or-death decision about another individual. It was argued that the approved three-judge panels provided for fact-based, yet deliberative, rulings in capital cases. However, since the judges must be in unanimous agreement to sentence to death, one person still can block the death penalty.

The legislature heard proposals this year both to go to a one-judge ruling in death cases and to return to a jury. Arguments for the one-judge method focused on account ability of judges to carry out death penalty law. Others, unconvinced that political pressure contributes appropriately to due process in capital cases, argued either to give the three-judge system more time or go back to the 12-member jury. Unable to agree on an alternative, the three-judge panels remain intact for now, despite Senate Judiciary Committee Chair Dottie Wham's bid to return the decision to juries.

Wham says her preference to go back to the jury system has nothing to do with how many death sentences have been or might be imposed, but rather with her belief in the tradition of citizens having shared responsibility for making judgments of justice. "It's a terrible decision to be made, and it should be made by a jury of 12," said Senator Wham at a February hearing to hash out the various proposals. "The jury represents the conscience of the community."

EXECUTIONS AND MURDER RATES

It's debatable whether the death penalty deters murderers or is simply violence that begets more violence. Crime rates are affected by so many factors, including demographics, the economy, and even the weather, that coming to a cause-and-effect conclusion about the death penalty is impossible. Nationally, overall rates of violent crime have declined the past few years from a peak in the early 1990s. In 1998, violent crime rates were at about the 1980 level, which is still twice that of the 1960s.

STATES WITH    EXECUTIONS   MURDER RATE IN
DEATH PENALTY  1977-1998  1998 (PER 100,000)
Alabama            17             8.1
Arizona            12             8.1
Arkansas           17             8.0
California          5             6.6
Colorado            1             4.6
Connecticut         0             4.1
Delaware            8             2.8
Florida            43             6.5
Georgia            23             8.1
Idaho               1             2.9
Illinois           11             8.4
Indiana             6             7.7
Kansas              0             5.9
Kentucky            1             4.6
Louisiana          24            12.8
Maryland            3            10.0
Mississippi         4            11.4
Missouri           32             7.3
Montana             2             4.1
Nebraska            3             3.1
Nevada              7             9.7
New Hampshire       0             1.5
New Jersey          0             4.0
New Mexico          0            10.9
New York            0             5.1
North Carolina     11             8.1
Ohio                0             4.0
Oklahoma           13             6.1
Oregon              2             3.8
Pennsylvania        2             5.3
South Carolina     20             8.0
South Dakota        0             1.4
Tennessee           0             8.5
Texas             164             6.8
Utah                5             3.1
Virginia           59             6.2
Washington          3             3.9
Wyoming             1             4.8
Sources: Bureau of Justice Statistics; Uniform Crime Reports of the FBI
STATES WITHOUT MURDER RATE IN 1998
DEATH PENALTY     (PER 100,000)
Alaska                 6.7
Hawaii                 2.0
Iowa                   1.9
Maine                  2.0
Massachusetts          2.0
Michigan               7.3
Minnesota              2.6
North Dakota           1.1
Rhode Island           2.4
Vermont                2.6
West Virginia          4.3
Wisconsin              3.6

PUBLIC SUPPORT FOR DEATH PENALTY REMAINS STRONG

Michael Foote,

Seven out of 10 Americans support the death penalty for people convicted of murder, according to a Gallup poll conducted in February 1999. The Gallup Organization's latest numbers show 71 percent favoring capital punishment, 22 percent opposing it and 7 percent offering no opinion.

And while a strong majority, 64 percent of those polled, felt that the death penalty is not imposed frequently enough, there also was 58 percent agreement that capital punishment unfairly singles out minorities and the poor.

Opposition to the death penalty is stronger among minorities than among whites: 41 percent responded that the death penalty is used too often, while only 22 percent of white people surveyed held that view.

Over the last 65 years, support for the death penalty has coincided with actual use of the punishment. During the 1950s, support was at 68 percent. Support fell to a low point in 1966 when 42 percent of Americans supported and 47 percent did not support capital punishment. The number of executions in the states dropped off in the 1960s as compared with the two previous decades. By 1972, support for capital punishment again rose to 54 percent; by 1985 to 74 percent; and enthusiasm for the death penalty hit its high mark in 1994, with an 80 percent approval rating. The approval rating has not dropped below 70 percent since then.

The latest poll also showed many Americans willing to consider life imprisonment as an alternative to the death penalty. When the same people who were questioned about their support for capital punishment were offered options of life imprisonment without the possibility of parole or execution, the support for the death penalty dropped to 56 percent.

Michael Foote, NCSL