As Chris noted in this recent post, there is growing world-wide opposition to the death penalty, and the numbers are down in the U.S. but it's still most prevalent in the South.
The case of a mentally deficient death-row inmate in Mississippi prompted a recent three-part investigative report by the McClatchy Newspapers into the failure of lawyers to adequately defend death penalty cases in Georgia, Mississippi, Alabama and Virginia. They reviewed dozens of recent cases and found:
In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.
- In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.
- By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.
- Appeals courts for the most part have ducked those Supreme Court directives about the importance of quality defense counsel. So far, only two of the 80 death sentences have been overturned for bad lawyering.
- In 11 of the cases, the defendants already have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.
Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. So far, none of that office's 46 clients has been sentenced to death.
Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle.
In one case, the entire penalty phase defense consisted of a bumper sticker slogan: "What would Jesus do?" That's a good question, but hardly an adequate defense.
Details of the brutal and horrific acts committed by some of the defendants are shocking, and no there's no amount of mitigating evidence sufficient to excuse such crimes in the mind of any sane person. But that does not answer the moral question of whether the state-sanctioned taking of another life is just, nor does it excuse the lack of due process and adequate legal defense guaranteed by the Constitution and affirmed by numerous Supreme Court decisions.
Recently, new legal challenges as to whether lethal injection is cruel and unusual punishment have put executions on hold in several states.
In December, then Governor Jeb Bush halted all executions and ordered a complete review of Florida's lethal injection procedures following a botched execution. Opponents of Florida's death penalty note that state law provides stricter regulation of drugs and procedures used to euthanize animals than for executing prisoners by lethal injection.
More recently, the governors of North Carolina and Tennessee have put executions on hold in their states pending review of lethal injection procedures.
This week in North Carolina, Gov. Mike Easley halted executions in that state because of a medical ethics dilemma. State law requires a physician to attend to the condemned's execution, but the state's medical board says it will sanction doctors who violate ethics rules that prohibit them from taking part in executions.
An even more troubling situation prompted Tennessee Gov. Phil Bredesen to halt executions earlier this month. A death row inmate's lawsuit challenging the state's lethal injection procedures prompted a review which uncovered, as Governor Bredesen called it, a "cut-and paste" procedure manual containing bizarre instructions:
The manual's minute-by-minute guidelines for lethal injections includes the following instruction: "The Executioner will engage the automatic rheostat." A rheostat controls the voltage flowing to an electric chair.
The guidelines also tell the facility manager to disconnect the electrical cables in the rear of the chair before a doctor checks whether the lethal injection was successful.
The lethal injection manual also has instructions for shaving the condemned inmate's head and requires fire extinguishers to be on hand. Another provision calls for a "cut-down procedure" in which a physician is to make a deep incision into a condemned inmate's limb to find a vein if necessary, a practice opponents say is cruel and unusual and a violation of medical ethics.
Responding to Governor Bredesen's decision, a professor of moral philosophy calls for a national death penalty moratorium in this Associated Baptist Press editorial:
In a move that received very little attention, Gov. Phil Bredesen recently suspended all executions in Tennessee until May, pending a full review of what he called our "sloppy" execution procedures. The governor is to be commended for this brave and wise decision.
But I suggest that he take this opportunity to review not just the execution procedures, but the entire application of the death penalty in this state. That will take far longer than a few months. We need a death penalty moratorium-not just in Tennessee but in all states.
When the Supreme Court ruled in 1976 that states could resume executions, they mandated that any state doing so must apply this ultimate penalty in a fair and consistent, rather than arbitrary and capricious, manner. No one can honestly look at the current application of the death penalty in Tennessee and believe that we have met that test.
He goes on to discuss the racial and class issues surrounding the death penalty, and cites Biblical references to support his position:
It would take another column to review the biblical arguments, which in the South are a profound factor in support for the death penalty. Even if we were to take the Old Testament alone as our guide, it requires the eyewitness testimony of two or three witnesses (Deut. 17:6), a stricter standard than our own. It also requires that the justice system "not show partiality" (Deut. 16:19) and therefore that every accused person be treated similarly. And this is not even to consider the profound issues raised by the New Testament's focus on mercy.
As of now, at least, the death penalty is a public policy that fails the most basic standards of justice. It is time for a moratorium and a comprehensive review.
Polls show that about 65% of Americans approve of the death penalty, a number that has remained fairly constant over the years. But we're insulated -- morally, emotionally, and physically -- from the process. We elect representatives who make the laws in our name. We elect governors who sign off on the executions in our name. We hire corrections officials to carry out the executions in our name. But most of us are never directly involved in any of it.
What would happen if every citizen of the state had to read and personally approve the procedures described in Tennessee's lethal injection manual? Or, what if teams of citizens were selected at random, similar to jury duty, to personally carry out executions? Would we still have the stomach for it? What would Jesus do, indeed.