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Featuring Essays by:
Edward Said, Robert Fisk, Michael Neumann, Shahid Alam, Alexander
Cockburn, Uri Avnery, Bill and Kathy Christison and More
Recent
Stories
August
6, 2003
David
Krieger
Remembering Hiroshima and Nagasaki
Stan
Goff
Military Equipment and Pneumonia
August
5, 2003
Uri
Avnery
The Prisoner of Ramallah: Arafat at
74
Forrest
Hylton
Terrorism and Political Trials: the
View from Bolivia
Ray
McGovern
"We Cook Estimates to Go"
David
Morse
Poindexter's Gambit
Edward
Said
Orientallism: 25 Years Later
George
W. Bush
My Resumé So Far
Hammond
Guthrie
It's Incremental, Watson!
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of the Day
National Prayer Day
August 4, 2003
Bruce
K. Gagnon
Another Peace Activist Detained by
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David
Lindorff
Fear-Mongering About Social Security
Mark
Zepezauer
George F. Will: Descent into Self-Parody
James
Plummer
Tracking You Through the Mail
Mickey
Z.
Marriage Insecurity from Sharon to Bush
Bruce
Jackson
News that Isn't News: How the NYT's
Pimps for the White House
August
2 / 3, 2003
Tamara
R. Piety
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Francis
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Vest
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Neve Gordon
Nightlife in Jerusalem
Uri
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Their Master's Voice:
Bush, Blair and Intelligence Snafus
Robert
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Paternalistic Democracy for Iraq
Jerry
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Israel, Yellowcake and the Media
Noah Leavitt
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Landau
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One Big Prison Yard: the Meaning of George Jackson
Thomas
Croft
In the Deep, Deep Rough: Reflections on Augusta
Amadi Ajamu
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1, 2003
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Mariner
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Alex Coolman
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July
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Hull
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Speculation Blues
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July
30, 2003
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How Ashcroft Coerces Guilty Pleas
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Zvi
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The Hidden Costs of the Iraq War
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Thomas
Killing Mustafa Hussein: Death of a Child, Birth of a Legend?
Sean
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ND Jayaprakash
India and Ariel Sharon
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Perry
Bush's Top 40 Lies
Standard
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Click Here
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August
5, 2003
Will
the Death Penalty Ever Die?
A
Review of The Contradictions of American Capital Punishment
By
ELAINE CASSEL
In The
Contradictions of American Capital Punishment, Boalt
Hall Professor of Law Franklin E. Zimring attempts to resolve
several major conundrums about the death penalty in the United
States.
Zimring does a laudable job of answering
these lingering, troubling questions. He also suggests that U.S.
death penalty support is waning, but explains why true abolitionism
here--commonplace in Western Europe--may be long in coming to
America.
Why Is the U.S. So
Committed to the Death Penalty?
Two major questions Zimring addresses
are these: Why is the U.S. the only developed Western nation
to currently have the death penalty? And, what is it about our
history and culture that supports our affinity for this ultimate
use of government power?
Western European countries have rejected
capital punishment as a matter of fundamental political belief--the
deeply-held belief that no civilized state should execute its
citizens. To these countries, execution is now as unthinkable
as slavery or cannibalism.
In contrast, capital punishment is ensconced
firmly in the American tradition. Of the 50 states, a strong
majority of 38 has chosen to have the death penalty.
Nevertheless, in practice, three-quarters
of executions occur in the South and in Arizona. Moreover, a
handful of southern states account for most of these executions--withTexas,
Virginia, and South Carolina leading the pack.
Zimring suggests that the reason for
the predominantly Southern character of the American death penalty
is cultural. The death penalty culture of the contemporary South,
he argues, comes from the same culture of vigilante justice that
once led to lynchings.
To prove his point, Zimring offers an
appendix that shows a strong, direct correlation between a state's
rank in number of lynchings, and number of executions. His statistics
should give pause to anyone who believes that the death penalty
is somehow the product of reasoned deliberation, rather than
simple mob vengeance.
What Will Happen to
the Death Penalty in America?
Zimring also asks this further question:
What is the future of the death penalty in the U.S.?
In Gregg v. Georgia, in 1976, the Supreme
Court laid down guidelines for imposition of capital punishment.
Ironically, however, in the states where the death penalty is
strong, there have been more, not fewer, executions since then.
What accounts for this? Zimring cites
two main causes. First, federal habeas corpus review of state
death sentences has been sharply limited, especially in the 1996
Antiterrorism and Effective Death Penalty Act. Second, victims'
rights groups, and victims' families, continue to be involved
in the prosecutorial process, weighting it towards imposition
of the death penalty. Most prosecutors seek input from the victim's
family in deciding whether to seek the death penalty. Several
states allow families to witness executions.
Nevertheless, despite these developments,
Zimring suggests that overall, the American people's approval
for the death penalty is waning. The main reason for this, Zimring
suggests, has been recent findings that innocent people were
on death row awaiting execution--and the companion realization
that in the past, many who should have been exonerated, must
have been executed instead.
According to data maintained by the American
Civil Liberties Union, between 1973 and 2003, 110 death row inmates
in 25 states were found to be innocent and released from death
row. More than half of these exonerations occurred in the last
10 years. The advent of DNA testing has also been helpful in
convincing the public that the execution of innocents is a reality,
and that this atrocity is actually shockingly common. Notably,
it was this concern that led former Illinois Governor Jim Ryan
to commute the death sentences of all the condemned men in Illinois.
An Administration
Far Out of Step with U.S. and World Death Penalty Opinion
Meanwhile, however, we have a President
and Attorney General who are obsessed with the death penalty,
and thus out of sync with the evolving trend. One sign of this
is that since 2001, while Attorney General Ashcroft has sought
the death penalty in 18 cases (often against the wishes of his
prosecutors), the sentence has actually been handed down in only
a single case.
While governor of Texas, Bush presided
over a staggering 152 executions. He has assures us that he never
signed the death warrant for an innocent person. But records
of communications between Bush and his now-White House Counsel,
and then-State House counsel Alberto Gonzales, indicate that
Bush engaged in only perfunctory (if that) review of death sentences,
as FindLaw Columnist John Dean has discussed.
In light of this revelation, the chance
that Bush never allowed the execution of an innocent person--or
one whose trial process was grossly deficient--seems slim indeed.
And Bush's casual review of life-or-death decisions seems to
betoken an extremely casual attitude about the death penalty.
During the 2000 presidential campaign, Bush even ridiculed the
clemency plea of death row inmate Karla Faye Tucker.
Bush's attitude is far different from
that of the American people, who are concerned about death penalty
injustices, and that of U.S. allies. Moreover, foreign leaders--as
Zimring notes--are increasingly willing to criticize and stigmatize
the U.S.'s devotion to the death penalty.
Recently, British Prime Minister Tony
Blair demanded that two British subjects held on Guantanamo Bay
as enemy combatants not be considered death-eligible in their
military tribunal trials. Bush capitulated.
In addition, Germany and France--which
have cooperated greatly with the U.S. in hunting down and capturing
Al Qaeda operatives--have sought to ensure that the information
they provide the U.S. cannot be used to seek a death sentence
for terrorists brought to trial in the U.S.. France sought such
a concession in the case of Zacarias Moussaoui.
The Court: Some Hope
for Curtailing the Use of the Death Penalty, But Not Much
Some progress has also been made in the
U.S. Supreme Court, but it has been limited. In its recent decision
in Atkins v. Virginia, which I discussed in a column for this
site, the Court held that the mentally retarded cannot constitutionally
be executed. Justice O'Connor wrote the Atkins decision, and
also was heard to remark in 2001, that "if statistics are
any indication, the system may well be allowing some innocent
defendants to be executed."
In the upcoming October Term 2003, the
Court will confront the question of whether it is constitutional
to execute the mentally ill--and may well reach a similar conclusion.
But the future is less hopeful. The Court may well become even
more rightward-leaning if Bush is re-elected and Justices retire,
as several are expected to do. If O'Connor, one possible retiree,
is replaced by a strongly pro-death-penalty Justice, the Court's
death penalty jurisprudence might even worsen.
With virtually, and perhaps literally,
no chance of the Court striking down all--or even most--death
penalty applications, States will still be able to apply the
penalty if they so choose. And even if America continues to undergo
a sea change in death penalty opinion, if that change does not
reach the death-happy Southern states that are most prone to
apply the penalty, it may do little practical good. Death row
inmates were laudably freed in Illinois--but when, if ever, will
they be freed in Texas?
Chipping Away at the
Death Penalty, But Not Abolishing It
Overall, Zimring's findings indicate
that public and judicial sentiments remain focused on what are
perceived to be the most egregious death penalty abuses, and
not on the abolition of the penalty itself. Yet the death penalty
is inherently flawed, not simply problematic.
Condoleezza Rice called slavery the "birth
defect" of the American republic. The death penalty is likewise
a congenital deformity. There is a cure, but it will require
a continuing shift in public opinion. We are likely to be living
with the death penalty for the foreseeable future.
Elaine Cassel
practices law in Virginia and the District of Columbia, teachers
law and psychology, and follows the Bush regime's dismantling
of the Constitution at Civil
Liberties Watch. She can be reached at: ecassel1@cox.net
Weekend Edition Features for August 2/3, 2003
Tamara
R. Piety
Nike's Full Court Press Breaks Down
Francis
Boyle
My Alma Mater, the University of Chicago, is a Moral Cesspool
David
Vest
Sons of Paleface: Pictures from Death's Other Side
Neve Gordon
Nightlife in Jerusalem
Uri
Avnery
Their Master's Voice:
Bush, Blair and Intelligence Snafus
Robert
Fisk
Paternalistic Democracy for Iraq
Jerry
Kroth
Israel, Yellowcake and the Media
Noah Leavitt
What's Driving the Liberian Bloodbath: Is the US Obligated to
Intervene?
Saul
Landau
The Film Industry: Business and Ideology
Ron Jacobs
One Big Prison Yard: the Meaning of George Jackson
Thomas
Croft
In the Deep, Deep Rough: Reflections on Augusta
Amadi Ajamu
Def Sham: Russell Simmons New Black Leader?
Poets'
Basement
Vega, Witherup, Albert and Fleming
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