Time running out for a cruel and unusual punishment
- December 30, 2006
RICHARD Dieter is an optimist. The executive director of the Death Penalty Information Centre in Washington, DC, genuinely believes he will see the day when the US abandons execution as a punishment for its most violent criminals.
But Dieter's is not the blind optimism that gets that other 60-year-old Washington chief executive into so much trouble in Iraq. His
is backed by polls showing support for capital punishment in the US has never been weaker, and analysis that shows execution has become a more expensive option than incarcerating killers for life.
Other statistics show not only a sharp fall in the number of executions taking place in the US each year but also a similar decline in the number of cases in which prosecutors ask juries to impose a sentence of death.
In 2006 the number of death sentences handed down in US courts was just 114, the lowest figure in 30 years and down from 300 in 1998. Since 1999 the number of executions has tumbled 40 per cent, from 98 to this year's 53, a new 10-year low.
"I think the trend away from the death penalty is now quite clear," says Dieter. "I'm not saying it will vanish completely because I suspect it will stay in force for quite some time for terrorists who are caught red-handed.
"But for crimes committed under state laws the signs indicate that the days of executing people as punishment will come to a close."
One factor in the execution slowdown has been the lengthening of the appeal process. It's not uncommon for prisoners to wait 20 years or more for the final day of judgment. The delays have produced a bizarre situation in which the most common cause of death on death row is old age.
More importantly these delays have raised profoundly important questions about the deterrent value of executing someone so long after their crime was committed.
But perhaps the most persuasive argument against the death penalty comes from the 123 death row inmates released from custody in the US since 1973 after new evidence emerged to establish their innocence.
Most of these victims owe their freedom to DNA testing, though the real message of the DNA age remains a chilling one: in the decades before DNA science could intervene, too many people - certainly many more than anyone believed - were innocent when the state snuffed out their lives.
According to Dieter, this realisation is having a major impact on how people view the death penalty. "People now have a much stronger sense of the irreversible error inherent in capital punishment and they are less willing to put their faith in it," he says.
"Some people say the politicians will never let it go, that it's too valuable to them, but standards of decency have evolved. And when you get cases like that of Angel Diaz, it certainly helps push things along."
On December 13, Diaz, a 55-year-old Puerto Rican, became the last person executed in the US this year when he was strapped to a gurney and given a lethal injection at a Florida prison.
A murderer who had always proclaimed his innocence, Diaz was supposed to die inside 15 minutes from the standard, three-phase lethal cocktail of drugs: sodium pentothal to render the inmate unconscious, pancurium bromide to paralyse his breathing and, finally, potassium chloride to stop the heart. But in Diaz's case it was 34 minutes before he could be pronounced dead. For most of that time Diaz lay squinting and grimacing and seemed to be desperately trying to speak. When it was clear something was wrong, prison officials gave him a second dose of drugs to finish the job.
Florida, of course, has form when it comes to botching executions. In two celebrated electric chair cases in the 1990s the heads of the condemned burst into flames.
In Diaz's case the entire grisly episode was witnessed by anguished members of his family. In the national outcry that followed, Florida Governor Jeb Bush was forced to suspend all further executions pending the outcome of an inquiry.
Bush's decision followed a legal crisis over the death penalty in California where Governor Arnold Schwarzenegger has been forced into an overhaul of his state's lethal injection procedures after a federal judge ruled that condemned inmates were suffering excruciating, unnecessary and, by extension, unconstitutional pain.
California has been under a capital punishment moratorium since February, when the same judge stopped an execution at San Quentin because of "substantial evidence" that six previously executed inmates - including anti-gang activist Stanley Tookie Williams - had suffered inhumane lethal injection deaths.
In 2006 Missouri, Maryland and New Jersey also imposed death penalty moratoriums. North Carolina is following California in reviewing its lethal injection laws.
For those such as Dieter who believe the US Supreme Court will step up and outlaw the death penalty nationally once enough states have legislated against it, all this represents bright light at the end of a long tunnel.
Dieter expects states in the liberal northeast, where only 1 per cent of all US executions occur, will spark the final legislative drive. The first domino, he says, will be New York, where a court has already declared the state's death penalty laws unconstitutional. Once that happens, Dieter expects New Jersey and Maryland to follow.
"When enough states have taken action the Supreme Court will be able to look at the death penalty as unusual treatment that is not in keeping with contemporary thinking and practice," says Dieter.
"The court has already done this by striking down the death penalty for juveniles and the mentally retarded and it is likely to do so again in cases of the mentally ill. It comes down to consensus. When the court feels that society has moved on, and it can look at international precedents to support this view, then it can feel obliged to take action."
A Gallup poll this year found that two-thirds of Americans still support capital punishment but also, for the first time, that more Americans prefer the penalty for murder to be life without parole.
It's why cases such as those of Diaz, which raise issues on several levels, are so important to the death penalty abolitionists.
Diaz was one of three Spanish-speaking men who robbed a Miami strip club in 1979. One of the three shot and killed the bar manager. Because the bar patrons had been locked in a back room, there were no witnesses. The case was unsolved until 1983 when Diaz was turned in by a girlfriend.
A Puerto Rican prison escapee who had already killed a man behind bars, Diaz faced court with accomplice Sammy Toro.
The third robber, known only as Willie, was never identified.
At trial a witness testified that Diaz had told her it was Toro who fired the fatal shots. But a prison informer named Ralph Gajus, who occupied a neighbouring cell, testified that Diaz had admitted being the shooter.
The jury believed Gajus and Diaz was sentenced to death. In 2004 Gajus recanted, saying Diaz had never admitted being the gunman. Gajus said his original testimony was motivated by a desire to win concessions from prosecutors on his own murder charge.
The appeals process produced another revelation - the existence of a previously unseen memorandum in which a prosecutor wrote that Toro had been the gunman. Despite all this, Governor Bush, who may yet run for president, signed Diaz's death sentence late last month.
Next month more questions about the humanity and justice of capital punishment will be raised when the state of Texas executes 51-year-old Ronald Chambers, an African American who has been on death row since January 8, 1976.
Chambers grew up in public housing projects in Dallas and had just become a father when he and another man abducted, robbed and killed a college student and beat and attempted to kill another. The savagery of the crime is beyond question. Chambers shot his victim, then pummelled him 20-30 times in the head with a shotgun to make sure he was dead.
But Chambers has been on death row 31 years, longer than anyone in US history. For many, executing him now is no less obscene than the despicable crime he committed all those years ago.
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