July/August 2001 • Vol 1, No. 3 •

The Death Penalty:
Cruel, Unusual, and Completely Unfair

by Shirley Pasholk

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On June 14, 2001, the State of Ohio executed Jay D. Scott. On June 17, 2001, Texas Governor Rick Perry vetoed a bill outlawing the execution of mentally retarded inmates.

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The June 15 Plain Dealer headlined, “Jay D. Scott executed. First Ohioan to be put to death by the state against his will since 1963.” Texas is widely considered the execution capital of the United States. Ohio, on the other hand, has “only” executed two men since 1963.

With two state sanctioned murders in 38 years, one might expect that those killed are the type of cruel, calculating, unrepentant mass murderers proponents of capital punishment like to point to. Both Wilford Berry (a so-called “volunteer”) and Jay D. Scott suffered from severe mental illnesses.

While agreeing that Scott suffered from serious schizophrenia and had the mental capacity of a 12 year old and acknowledging that the jury was not told of his mental illness before making its recommendation for the death penalty, the Ohio Supreme Court ruled that there was no basis in Ohio law to overturn Scott’s death sentence. Ohio law simply requires that a defendant be aware that he is being executed and why.

Jurors admitted that they had no idea the profane outburst Scott made in the courtroom after being found guilty of murder was the result of mental illness. Instead, they interpreted these outbursts as a sign of cold-blooded disregard for the victim’s family. They said if the defense had introduced evidence of Scott’s condition, they would not have recommended the death sentence. (Under Ohio law, there are two phases in capital trials. If the defendant is found guilty in the first phase, a second penalty phase commences. After listening to possible mitigating circumstances against execution, the jury makes a recommendation. Although the judge is not required to follow this jury recommendation, he or she almost always does.) But these remarks from jurors mean nothing 18 years after the trial. All that counted was that Scott knew what execution meant and why he was about to be put to death.

And, as for having the mental capacity of a 12 year old, why would this make a difference in a State which recently passed a law allowing children as young as 10 to be tried as adults?

Scott made two previous trips to Ohio’s death house. On April 17 and May 15, courts granted last minute stays of execution to further review whether Scott’s mental illness should prevent his execution On May 15, this stay occurred after Scott had already been strapped to the gurney and was minutes away from the fatal injection.

Defense lawyers argued that this alone constituted cruel and unusual punishment reminiscent of the fake executions used by torturers in third world dictatorships.

Death penalty moratoriums

On January 31, 2000, Illinois Governor George H. Ryan declared a moratorium on executions in that state until a commission conducts a review of the death penalty and makes recommendations that will assure with moral certainty that no innocent man or woman will be executed. Although a proponent of the death penalty, Ryan reacted to news that 12 death row inmates had been executed since the Illinois death penalty was reinstated in 1977 while 13 death row inmates had been exonerated and released during this same period.

Citing similar concerns that “some people on death row may not be guilty of the crimes for which they have been convicted or may not meet the criteria for execution set forth in Ohio law,” State Rep. Shirley Smith introduced H. B. 733 last year, calling for an Ohio death penalty moratorium.

Many argued that this bill was unnecessary, that Ohio had an unofficial death penalty moratorium. The execution of Jay D. Scott proves this is not true. And, while Jay D. Scott is “only” the second Ohioan executed since 1963, he will not be the last.

In 1996, new federal legislation drastically limited federal court review of death penalty appeals and gutted public funding of legal aid services for death row prisoners. Many of Ohio’s 200 death row inmates have nearly exhausted their legal appeals. State Attorney General Betty Montgomery has publicly urged judges to speed up the appeals process. Ohio Governor Bob Taft who “prayerfully” considered and rejected staying the executions of two mentally ill men, Wilford Berry and Jay D. Scott, can be counted on to ensure that more state sanctioned murders will occur.

Execution of the innocent

Following Scott’s death, a state official was quoted as saying that at least there was no question Scott committed the murder for which he was convicted.

While some capital punishment advocates brazenly argue that a mistake (i.e. execution of an innocent person) here or there is inevitable, most people are outraged by the idea innocent people might be put to death. The movie “Hurricane” helped dispel some of the myths in the American “justice” system. Frame-up victim Mumia Abu-Jamal has attracted thousands of supporters worldwide. Yet, most Americans still believe that these are the rare exceptions.

A 1996 study by PEACENET’s Prison Information Desk, “Demographics of the Death Penalty,” showed how widespread such “mistakes” are. The study concluded that 8 percent of the 4,000 death row inmates were not guilty of the crimes for which they’d been convicted. That’s 320 “mistakes.”

Mental illness

But is the problem simply one of innocent people being executed? Is capital punishment acceptable if it’s only applied when the guilt of the prisoner is absolutely certain?

Although the U.S. Supreme Court has agreed to review whether current social standards permit the execution of severely mentally retarded individuals, execution of the mentally ill and mentally retarded is common. In 1992, then Arkansas Governor Bill Clinton interrupted his campaign for President to return to Arkansas and personally oversee the execution of a mentally retarded prisoner. Florida recently released a confessed, convicted “killer” when they learned that this severely mentally retarded man had only tried to please his police questioners by saying what he thought would make them happy. And, as the killings of Wilford Berry and Jay D. Scott show, the execution of mentally ill individuals is not limited to the South.

Speaking to an October 28, 2000 meeting in Youngstown, attorney John Juhasz discussed the case of a death row inmate he described as a “poster child” for capital punishment: an African American with a criminal record convicted of brutally murdering a middle aged white professional in her home. This prisoner’s low IQ and poor legal representation led him to plead no contest before a three judge panel without understanding that this plea was an admission to the facts in his case. He thought it was simply a way to avoid angering the judges.

Poor legal representation

This brings up another common feature of death row inmates: lack of adequate legal representation. About 90 percent of those facing capital charges cannot afford their own attorneys. No state meets the standard developed by the American Bar Association (ABA) for appointment, performance, and compensation of counsel for indigent defendants.

In February 1997, the ABA House of Delegates adopted a resolution calling for a death penalty moratorium. The ABA concluded that administration of the death penalty is a haphazard maze of unfair practices with no internal consistency.

A recent study by a Columbia University law professor and a graduate student examined death penalty convictions between 1973 and 1995. This study showed almost 7 of every 10 death penalty cases reviewed by federal and state courts were overturned because of significant mistakes made at the trial.

Of the cases sent back to state appellate courts, 82 percent eventually resulted in a punishment short of death. In 7 percent of these cases, the defendants were acquitted in a retrial.

The Columbia study found incompetent defense counsel and misconduct by overzealous prosecutors as key reasons for many reversals on appeal. In California, 87 percent of the death penalty cases sent back to lower courts contained either harmful or prejudicial errors. In Florida, the error rate was 73 percent,

The problem of incompetent counsel goes beyond the gross examples of political cronies sleeping through trials. It also goes beyond inadequate funds for the necessary expert witnesses, DNA tests, etc. Juhasz, pointed out that the complexity of the death penalty laws make it impossible for any attorney to effectively represent a defendant in a capital case. He said those who try real hard are just less incompetent.

Geography

Geography plays a major role on whether a defendant ends up on death row. Five of the 18 men on federal death row are from Texas as was Juan Raul Garza, executed on June 19.

Twelve states and the District of Columbia do not have a state death penalty. It’s well known that those convicted in Texas or Florida are much more likely to be executed. However, even within Ohio, geography plays a role in whether a defendant ends up on death row. While Cincinnati is Ohio’s third most populous city, Hamilton County (where Cincinnati is located) accounts for 24.6 percent of the prisoners on Ohio’s death row.

Juan Raul Garza, executed June 19, 2001

Race

Although 12 percent of the Ohio population is Black, almost half those on death row are African Americans. Sixteen of the 18 men on federal death row are members of minority groups. (The most recently executed, Garza, was Hispanic.)

In 1990, the United States Accounting Office reported a pattern of evidence indicating racial disparities in charging, sentencing, and imposition of the death penalty.

This report stated: “Nationwide, 82 percent of those put to death have been convicted of murdering a white person even though people of color are the victims in more than half of all homicides. In 82 percent of [the cases studied], race of the victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e. those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding held for high, medium, and low quality studies,”

In a 1989 study, “Executions of Whites for Crimes Against Blacks: Exceptions to the Rule,” Michael L. Radelet reported that of 17,000 legal executions in the history of the United States, only 35 were for whites killing Blacks. Five of these 35 occurred after the death penalty was reinstated in 1975.

Political convictions

Everyone has heard the truism; “There are no millionaires on death row.” This isn’t the only way the death penalty serves as a means of class oppression. Historically such militant working class fighters as Joe Hill, Sacco and Vanzetti, and the Haymarket martyrs have been singled out for execution.

While the case of Mumia Abu-Jamal has gained international attention and helped explode the myth that there are no political prisoners in the United States, he is not the only frame-up victim on death row.

Again, I’ll turn to Ohio’s death row for a lesser-known example: George Skatzes, sentenced to death for his role in the April, 1993 Lucasville prisoner rebellion. Although Skatzes didn’t kill anyone and, according to both prisoners and prison guards, tried to prevent the killings which took place during this rebellion, he was singled out because of his role as a prisoner spokesperson. Because he refused several offers by the Ohio Highway Patrol to inform on other inmates, Skatzes was charged and convicted of killing a prison guard.

Skatzes’ trial points to another way the deck is stacked. In Ohio, a “death qualified jury” is required for capital offenses. That means anyone who opposes the death penalty is automatically dismissed for cause. In Skatzes’ case, those jurors who said they might take into consideration the conditions that led to the Lucasville uprising, were also excused for cause.

However, potential jurors who said their only problem with the death penalty is it isn’t used often enough were seated. Relatives of prison guards were also seated.

Growing Opposition

While most politicians refuse to speak out against the death penalty for fear of being labeled “soft on crime,” and the mass media and politicians of both parties try to whip up support for expanding the prison system in the name of fighting crime, pro-death penalty sentiment is gradually changing.

While death penalty opponents held a vigil outside the federal prison in Terre Haute, Indiana, where Garza was executed, no one showed up to defend the death penalty.

Many religious groups now oppose the death penalty. Pointing to the racist nature of capital punishment, many African American activists refer to it as legal lynching.

Surveys showing majority support for the death penalty disguise the unease many Americans feel. These same surveys show this support does not extend to executing innocent people, the mentally retarded, or the mentally ill. They do not believe race or income should determine whether someone is executed. In other words, their support is for an idealized use of capital punishment, which doesn’t exist in the real world.

While attention has focused on the execution of innocent victims, the rate of conviction of innocent defendants in non-capital cases is even higher. In his talk, Juhasz stated, “The criminal justice system operates on the basis of respect. For it to work, people need to believe that the results are reliable.

The movie, “Widow of St. Pierre,” delivered a powerful anti-death penalty message. Although the town’s population recognized that the convicted killer had reformed and could play a valuable role in society, the authorities insisted the death sentence must be carried out. To do otherwise would only make a mockery of the “justice” system since, as one actor explains, the man who is executed is never the same as the man who committed the crime.

Some who today oppose the execution of a frame-up victim like Mumia Abu-Jamal, or a mentally ill man like Jay D. Scott, will come to learn that these are not isolated “mistakes,” that the criminal “justice” system itself is an instrument of racist class rule. And as the authorities in St. Pierre realized, this knowledge can undermine their system.