Dead Wait

[DeniseJJ]

Dead Wait

By Dug Begley
Staff Writer
These days it can almost take a lifetime to be executed.

It wasn’t always this way.

In the old days — and whether they were good or not probably depends on your point of view — after a jury convicted the accused and a judge sentenced him to death, an appeals court made a quick review to be sure the trial was on the up and up, and the prisoner was whisked away to start contemplating his last meal.

“I don’t believe it was very unusual for a man to die within a year, or in some cases, within a month,” said Elizabeth Rapaport, a law professor at the University of New Mexico.

Unless fate stepped in.

Often, for political or social reasons, public officials commuted the sentence of the condemned man. In those days, a prisoner’s hopeful last words were likely to be, “Any word from the governor?” And sometimes there was.

From 1930 until 1967, each state had its own way of doing things. Most executions took place in the South, although the vast majority of states had capital punishment. In those 37 years, Georgia led the nation with 366 executions.

But the ’60s were a period of enormous social change, and in 1968 there was a nationwide moratorium on executions while America wrestled with the issue of capital punishment. Was it just or unjust, right or wrong, cruel and unusual or a mainstream approach?

In 1972 the U.S. Supreme Court made the call, ruling that the death penalty as it was being applied was unconstitutional, noting in particular that it was disproportionately meted out to the poor and minorities. However, the court left open the possibility that states could enact death-penalty laws that met fairness guidelines.

In 1976, the court decided that the “punishment of death does not invariably violate the Constitution.”

The following year the death penalty returned with a bang, when a Utah firing squad executed Gary Gilmore, but the executioner’s song would never be the same.

From 1973-83, the average time from sentence to execution nationwide was four years, three months; in 2002 it was 10 years, seven months. In 2002, 71 prisoners were executed in the United States and 21 more on Death Row died of natural causes.

One reason implementing executions takes so long, Rapaport said, is that “Over the years, capital punishment has developed more and more law.”

What’s more, she said, “These cases are extremely complex. A trial is going to have a few factors to decide, but a death penalty case is going to have dozens.”

Also jacking up the average stay on Death Row, she said, is the fact that many of the states that have the death penalty are loath to use it. California has the nation’s most populated Death Row, with more than 600 inmates, but has executed only 10 people since 1973.

By contrast, Virginia has sentenced 137 people to death in the same time span and executed 87 of them.

Regardless of whether a state uses capital punishment, working out the legal issues in the court system can be a laborious journey, beginning with jury selection.

Infographic by Ryan Stultz


Step 1: The proof, the whole proof and nothing but the proof

Laws differ from state to state, but every prosecutor has to take special care when handling a death penalty case.

“They don’t send a rookie from misdemeanor traffic court,” Rapaport said of local prosecutors. “They send their experienced people.”

It can take months to prepare a capital case, those who have tried them say, and every detail of the crime must be meticulously pored over.

Scheduling can also be an issue, especially because finding an open four-week spot on a court calendar can de difficult. The trial of Juan Pelegrin, who is accused of murdering a University of Louisville student, which might be a capital case, probably won’t begin until next spring.

“When I clerked in a court that handled death penalty cases, we used to ration the number of death penalty cases we could do,” Rapaport said.

Nearly every step of the process is lengthened. Picking a jury takes additional steps. Investigations are double- and triple-checked for accuracy.

Still, some say, capital cases are not essentially different from other murder trials in the level of legal issues they address.

“As more and more cases — again, not just capital cases — are appealed and heard, all levels of the judicial system are affected and thus take longer to complete,” said J. Robert Deans, a spokesman for the Death Penalty Information Center.

The complication not only affects the court, but also the attorneys, Rapaport said.
In many states, defendants in death penalty cases must have experienced counsel. In small and medium-sized cities, only a handful of lawyers can take the case.

Step 2: Repeat Step 1

Once someone is tried the first time and sentenced to die, the entire case goes back to square one.

“One of the changes since the death penalty was brought back was in the appeals process,” Rapaport said.

Experts agree that while costly and time-consuming, automatic reviews are necessary. Austin Sarat, a jurisprudence expert at Amherst College, argues that defendants deserve nothing less than every opportunity to plead their case. “You have to give them super due process,” Sarat said.

Rapaport said that in most states, the review can be as laborious an ordeal as the original case. “Sometimes the delay is caused by trying to find enough attorneys to do the appeals,” she said.

Once again, procedure on automatic review differs from state to state, but 37 of the 38 states that execute convicts require some form of review, either of the sentence or of the conviction, or both. Only South Carolina gives defendants the right to waive reviews, if they are found to be competent by the court.

As laws have more closely defined the parameters of capital punishment, the requirement for review has been increased, and for good reason. “We are past the point in this country where you will not receive state court review,” Rapaport said. “To have the punishment, you have to make sure all steps of what the Supreme Court allowed will happen.”

Plus, unlike in the early 20th century, when executions were quick and locally guided, states across the country have initiated steps for post-conviction relief, where someone found guilty of capital murder can argue factors that won’t spare him the conviction, but can save his life.

“It is usually a claim of ineffective counsel,” sighed Steve Stewart, the prosecutor in Clark County, Ind.

Step 3: Square 1 with the Feds

Once a defendant has exhausted all his numerous options at the state court level, federal courts can also get involved, especially when questions of fairness and civil rights come into question.

For Stewart, it is the end of a very, very long line, but the beginning of a new ordeal for prosecutors. Asked why executions now take a decade or more, Stewart replied: “Weak-willed judges.”

“They can file a writ of habeas corpus, when about every issue litigated in the state court is litigated again in the federal courts,” he said.

The problem, Stewart argues, is that federal judges are not interested in efficiency. “Federal court judges are lifetime appointments, and they don’t give a sh**,” he said. “They work at a snail’s pace.”

If a well-connected defense attorney can use that to his advantage, Stewart said, executions can easily be delayed for years. “Each one of the hearings I’m talking about can take as long as a judge allows.”

Finding a sympathetic federal judge, who holds almost all the power, can ruin years of work. “All they have to do is find one federal judge to say, ‘Yeah, you’re right,’ and let them off Death Row,” Stewart said.

If a case actually gets past the federal bench without the defendant being removed from Death Row, then clemency from the governor, or the president in federal cases, can still apply.

Last-minute challenges have changed the landscape of execution recently. Earlier this week, an Alabama inmate who had been scheduled to die last October gave himself more time by arguing that the lethal injection method the state uses would be cruel and unusual because — don’t laugh — his intravenous drug use damaged his veins.

In his request, David L. Nelson argued that Alabama’s switch to lethal injection meant he would have to undergo a painful procedure to open veins in his arms and legs. Alabama switched from the electric chair to lethal injection on July 1, 2002. Nelson, who has spent more than 20 years on Death Row, waited until weeks before his scheduled Oct. 9, 2003, execution date to challenge the procedure. State attorneys called the maneuver nothing more than a last-ditch effort.

The 11th U.S. Circuit Court of Appeals agreed, but the U.S. Supreme Court ordered the execution postponed until it could rule.

Monday, in an unanimous opinion written by Justice Sandra Day O’Connor, the court agreed that Nelson can appeal his sentence because, for him, lethal injection would be cruel and unusual.

Despite claims by Alabama prosecutors that granting Nelson an appeal would overwhelm the court system with challenges, the high court disagreed.

“Respondents are incorrect that a reversal here would open the floodgates to all manner of method-of-execution challenges and last-minute stay requests,” O’Connor wrote.

Still, the justices warned that not all late requests from Death Row inmates will be welcomed. “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief,” the opinion said.

Nelson, who never argued against his execution, just the method of it, will await an appeal of his death sentence at the state level.

Time is on their side

It might frustrate prosecutors like Stewart, but Rapaport said these hurdles are needed to balance the state’s desire to impose death with its responsibility to use it judiciously.

Many states, she added, put lots of people on Death Row but do not use their execution chamber often. “That is going to affect the average time on Death Row,” she said.

Stewart argues some of the policies amount to, well, overkill. “There’s never been such due process, if that’s what you want to call it, in the history of the world,” he said.

If society chooses to have the death penalty, Stewart said the judicial system should be willing to implement it. Many lawyers and politicians, in Stewart’s opinion, have used capital punishment as a pedestal, thereby making it a longer process. “The death penalty has almost come to the point where everyone is locked into their opinions,” he said.

Rapaport sees the dividing line between pro and con as part of the balancing act. “It tends to attract capable and dedicated people,” she said. “And most lawyers who have that responsibility feel keenly about it.”

Their convictions often result in vigorous attempts to spare their client from execution. “Lawyers will go for broke,” she said. “If steps in the process are taken out, the lawyers in the system will find some other way.”

For Stewart, that creates a problem when making the death penalty a realistic option for prosecutors. “It’s like a Catch-22, because they get more safeguards and due processes and they are given so many attorneys. But then they say the death penalty is too expensive,” he said.

Committed defense lawyers add costs for the courts and prosecutors. “Some (prosecutors) duck the death penalty because of the cost,” Rapaport said.

Stewart emphatically denies he is one of them. “There is no doubt that it is in the back of everyone’s mind,” he said of funding. “But it is a small part of the decision.”

Deans, of the Death Penalty Information Center, said he believes the costs are not a solid argument for either side.

“The actual difference in cost between room and board for ‘lifers’ and death cases is not as great as the costs for appeals, investigators, etc., at the initial trial level,” Deans said.

“However, since death cases have the same numbers of basic appeals as any other kind of case, I would assume one would be hard-pressed to argue that the length — overall — of the capital appeals process is costing taxpayers a significant amount more.”

Though it is not taxing their pocketbooks, Stewart argues the process taxes the patience of victims and the public.

He said there might be some indication that people want it both ways: having the death penalty but never using it.

Nevertheless, he said, in the end, people favor capital punishment. He thinks the most vocal opponents strayed from society’s concerns with examinations of the number of people who have escaped execution because to court decisions.

Recent studies, and the clearing of Illinois’ Death Row, do not reflect people’s thoughts, Stewart said. Experts have said the studies and former Illinois Gov. George Ryan’s decision prove the death penalty is too flawed to go on.

“I’m not sure society as a whole feels that way,” Stewart said. “I don’t think the general public at large gives a sh**.”

Sarat disagrees.

No level of oversight, Sarat said, can totally remove human error.

“There might be an experience where no amout of checks and balances will be enough.”

But few see the pendulum swinging back to quicker executions. Including Stewart.. “I’m pretty pessimistic about that,” he said.

He also has little faith in the public expressing its ire over the long wait.
“If it was ever going to hit that point, it would have already hit it.”

[MiamiChica22]

Geez, what a creepy article. That prosecutor Steve Stewart sounds as if he'd happily inject the poison into their veins himself. Why should he care whether the process takes five or ten or twenty years? Those men are behind bars and will do no harm anymore. Isn't it better to have a thorough appeals process on a state and federal level, making sure that all avenues of investigation have been exhausted to ensure that an innocent person is not put to death? And I vehemently disagree about his statement that federal judges don't give a s**t. Yes, they are appointed for life, the thought being that they are beholden to no one particular group to keep them in office thus "justice is blind".

[Keltria]

A long but very interesting read thank you very much

[Kyla]

That was interesting. I have a few points (well I have alot of points, but I would have to repost your whole article).

Nearly every step of the process is lengthened. Picking a jury takes additional steps. Investigations are double- and triple-checked for accuracy.

This is not true. Half the time, the investigations are done by the prosecutions, and the court appointed attorney for the person convicted has little to no time to prepare a case, unless they are hired from day one. These court appointed attorneys have little time, and the cases remain unprepared, just to give the prosecution there sentence. Without appeals processes, people on death row would stand no chance what so ever.

They can file a writ of habeas corpus, when about every issue litigated in the state court is litigated again in the federal courts,” he said.

The federal courts have to check if the trial, to sentencing someone to death is valid. People can usually only file a federal habeas, if there state habeas is rejected, and it has been shown that errors have occured during there trial. If the states followed the "law" and had more reasoning, these federal appeals wouldnt have to be filed. The federal courts have to check that the reasons the states courts rejected them was fair. Its sad, its a time game.

Many states, she added, put lots of people on Death Row but do not use their execution chamber often. “That is going to affect the average time on Death Row,” she said.

I have one word.... TEXAS!!!!! This is so not true. NC, isnt far behind, with the rest of the states.

Just my worth.
If they are going to whinge that much about the Death Penalty, why not just abolish it altogether.