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America's Barbaric Death Penalty

by Stephen Lendman Thursday, Jun. 23, 2011 at 4:52 AM


America's Barbaric Death Penalty - by Stephen Lendman

Numerous organizations oppose capital punishment, including the World Coalition Against the Death Penalty (WCADP), an alliance of about 60 NGOs, bar associations, local bodies and unions, founded in May 2002. In 2003, it established October 10 as the World Day Against the Death Penalty.

On October 10, 2011, the 9th World Day seeks to raise awareness of the inhumanity of capital punishment from sentencing to execution. In fact, death row inmates endure horrific emotional and physical suffering under appalling conditions with little regard for their well-being.

Last year, the 8th World Day was "dedicated to the USA which executed 52 people and handed down 106 death sentences in 2009." America is one of the few federalists countries empowering states with this right. Presently, 34 use it. The others opt out, Illinois the latest one abolishing it, although 10 retentionist states haven't executed anyone for 10 or more years.

Amnesty International (AI) calls capital punishment "the ultimate denial of human rights. It is premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice."

In fact, there's nothing just about state-sponsored murder, especially against wrongfully accused victims. In America, they're mostly poor Black and Latinos, denied due process and judicial fairness. The system, in fact, is rigged to convict even known innocent defendants, the most famous being Mumia Abu-Jamal.

Falsely convicted in July 1982, he's been on death row for nearly 29 years. The Supreme Court repeatedly denied him a new trial despite clear prosecutorial and judicial misconduct, racial discrimination, perjured testimonies, and political intent to hold him culpable for a crime he didn't commit.

Kevin Cooper is less well known, also languishing on death row despite his innocence, another victim of American injustice because he's poor, Black, and easy prey. An earlier article on him can be accessed through the following link:


More about his case below and US 9th Circuit Court of Appeals Judge William A. Fletcher's belief in his innocence.

The Chicago-based Campaign to End the Death Penalty (CEDP) aims to abolish it in America, hoping to grassroots activism will achieve it. The US is the only Western country still using it. In addition, since 1990, 30 countries abolished it, and among the 74 still executing, four are the main abusers - America, China, Vietnam and Iran.

Currently, about 3,200 US prisoners are on death row. In 1972, the Supreme Court (in Furman v. Georgia) said:

"the imposition and carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, (and so) harsh, freakish, and arbitrary" to be constitutionally "unacceptable." The decision voided 40 death penalty statutes, thereby commuting the sentences of over 600 death row inmates nationally.

In 1976 (in Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida - collectively called the Gregg decision), the High Court reinstated the death penalty and let states impose it. The Court held that new death penalty statutes in these states were constitutional under the Eighth Amendment, even with cruel and unusual punishment clauses that should have banned them.

In Gregg v. Georgia, the Supreme Court called the death penalty not inherently cruel, only "an extreme sanction, suitable to the most extreme of crimes."

In fact, it's extremely cruel and barbaric, flouting due process, judicial fairness and humanity, violating equal constitutional protection. It disproportionately affects people of color, the poor, and disadvantaged. It legitimizes state-sponsored murder, innocent as well as guilty prisoners affected. Moreover, it's ineffective in deterring crime, and unconscionable in civilized societies.

In 2000, former Illinois Gov. George Ryan declared a moratorium on capital punishment after 13 prisoners were found innocent and released.

On January 11, 2003, two days before leaving office, he then cleared death row, commuting sentences for 163 men and four women to life imprisonment. He also declared a moratorium on future executions, saying:

"The facts that I have seen in reviewing each and every one of these cases raised questions not only about (their innocence), but about the fairness of the death penalty system as a whole. Our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die."

Calling Illinois' death penalty system "arbitrary, capricious, and therefore immoral," he ended his gubernatorial tenure by pardoning four men and issuing a blanket commutation for all state prisoners on death row, adding "The Legislature couldn't reform it, lawmakers won't repeal it, and I won't stand for it - I must act."

In January 2011, both Houses of Illinois' legislature voted to end capital punishment, Gov. Pat Quinn officially abolishing it in March, saying it's impossible "to create a perfect, mistake-free death penalty system."

As a result, Illinois joined 15 other states and the District of Columbia (including New York, New Jersey, Minnesota, and Massachusetts) without capital punishment, what should have been abolished federally long ago.

Since 1976, after the death penalty's reinstatement, over 1,250 US inmates have been executed, mostly in southern states, and more than 35% in Texas alone. During his six-year gubernatorial tenure, George Bush was a modern-day Pontius Pilate, a Texecutioner, a serial killer responsible for 155 "homicides," showing his callous disregard for human life, evident globally as president.

Reasons to Oppose the Death Penalty

Its barbarism alone warrants banning it unconditionally. Other factors make it more convincing, including:

(1) Its application is racially biased with regard to defendants and victims, CEDP saying minority lives are less valued than whites. Blacks are about 12% of the population, but comprise 42% of death row prisoners. In Ohio, it's over 50%, and in southern states like Virginia, Arkansas, Mississippi, North and South Carolina it's more than 60%. Since 1776, America executed over 18,000 prisoners. Only 42 involved a white person for killing a Black, and according to AI, more than 20% of executed Black defendants were convicted by all-white juries.

(2) Poor people are unfairly affected, former Supreme Court Justice William O. Black quoted saying, "One searches our chronicles in vain for the execution of any member of the affluent strata in this society." In other words, those able to afford good legal representation avoid death row. Over 90% charged with murder are poor, unable to pay for a proper defense, instead relying on inexperienced counsel or public defenders with little interest in their case.

(3) Death sentences condemn innocent victims to die. Since 1973, 123 people in 25 states were discovered innocent and released. And they may be the tip of the iceberg, many others less lucky because authorities won't admit mistakes and often bogusly convict maliciously or for other unjustifiable reasons. Criminologist Michael Radlet explained that from 1900 - 1992, 416 documented cases of innocent people were convicted of murder or capital rape, one-third given the death sentence.

(4) Death penalty convictions don't deter crime. For example, southern states have a higher murder rate than northern ones even though 80% of executions occur there.

(5) As the Supreme Court said in 1972, "the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Even with no hitches, it's barbaric, but when botched it inflicts severe, sustained pain. As a result, in 2007, executions were on hold in over a dozen states, and botched ones put lethal injections under more scrutiny.

In 2005, The Lancet published a medical researcher team report, finding "that in 43 of the 49 executed prisoners studied, the anesthetic administered during lethal injection was lower than required for surgery. In 43 percent of cases, drug levels were consistent with awareness." As a result, executions involved extreme pain, amounting to torture and still do willfully to inflict extra suffering.

Opposition to Capital Punishment

Last November 12 - 14, the Campaign to End the Death Penalty's annual convention was held in Chicago, featuring anti-death penalty/anti-criminal injustice workshops, strategizing and discussions on abortion rights, and more, including opposition to life without parole (LWOP), other harsh sentences, police brutality, wrongful convictions, and other unjust acts.

The Universal Declaration of Human Rights and other international human rights laws recognize the dignity of life and right not to be subjected to cruel, inhuman or degrading treatment.

On November 15, 2007 and again on December 18, the UN General Assembly adopted Resolution 62/149, proclaiming a global death penalty moratorium. Proposed and sponsored by Italy, its Foreign Minister Massimo D'Alema said, "Now we must start working on the abolition of the death penalty."

Resolutions, however, aren't enough, especially given America's attitude with the world's largest prison population, a giveaway to its disdain for people of color, the poor and disadvantaged, many on death row unjustly.

Wrongfully Convicted Kevin Cooper

One of many, Judge William A. Fletcher addressed his case on April 12, 2010 in the inaugural Gonzaga University School of Law Justin L. Quackenbush lecture. Focusing on capital punishment, he asked: "Where have we been? Where are we now? And where do we go from here?"

Reviewing America's modern history, he cited Furman v. Georgia (1972, cited above). Also, the 1976 Gregg decision (explained above). He then called America "unusual among industrialized nations," only Japan and China among them retaining the death penalty. All European Convention of Human Rights signatories renounced it, including Western, many Eastern European states, and Central Asian ones.

In America, he discussed state differences and High Court decisions since Furman and Gregg. In Atkins v. Virginia (2000), it ruled executing a mentally retarded person unconstitutional. In Roper v. Simmons (2005), it prohibited executing anyone under 18 at the time the crime was committed. In Kennedy v. Louisiana (2008), it extended its 1977 Coker v. Georgia ruling that held capital punishment for adult rape to include children.

Nonetheless, America's death penalty system changed little since Gregg, empowering states to use it. Citing pro and con arguments, he "return(ed) to the theme of Furman" that struck down capital punishment nationally, the Court concerned that sentences were handed down capriciously, arbitrarily and unfairly.

Yale Law School Professor Charles Black, in his book "Capital Punishment, The Inevitability of Caprice and Mistake" called capital punishment fatally flawed, saying:

There are some "hanging prosecutors, hanging juries, hanging judges, and hanging governors. But, overwhelmingly, the trouble is not in the people but in the system - or nonsystem."

From his own bench experience, Fletcher expressed similar concerns, citing Kevin Cooper's case as one example. On May 11, 2009, he was among eight dissenters on a 27 US 9th Circuit Court of Appeals panel voicing opposition to his guilt, saying in a joint statement:

"There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform" the proper tests. It "also impeded and obstructed Cooper's attorneys at every turn as they sought to develop the record." Unreasonable testing conditions were imposed, as well as "refused discovery that should have been available as a matter of course, limited testimony that should not have been limited, and found fact unreasonably, based on truncated and distorted record."

"The most egregious, but by no means the only, example is the testing of Cooper's blood on the t-shirt for the presence of EDTA. (The district court) so interfered with the design of the testing protocol that one of Cooper's experts refused to participate in the testing. (It let) the state-designated representatives (choose) samples to be tested." Cooper's experts were refused the right to participate in choosing samples or "even to see the t-shirt."

Yet the test result showed "an extremely high level of EDTA in the sample that was supposed to contain Cooper's blood. If that test result was valid, it showed that Cooper's blood had been planted on the t-shirt, just as Cooper maintained."

Fletcher knows that Cooper, a Black man, was bogusly convicted and imprisoned for a multiple homicide he didn't commit. Yet since June 1983, he's been incarcerated and is now on death row at San Quentin State Prison, CA, a victim of American injustice.

In his lecture, Fletcher called the police investigation "horrible in many ways, saying "in my view" he's innocent "because the San Bernardino Sheriff's Department framed him." In America's criminal injustice system, it happens repeatedly, mostly affecting poor Blacks and Latinos.

University of Denver Professor Sam Kamin studied California Supreme Court decisions from 1976 - 1986 (a liberal period under Chief Justice Rose Bird). He learned that the Court found constitutional errors in 60% of capital cases it reviewed, 70% of which were "non-harmless," resulting in an overall 42% reversal rate.

He then studied the 1986 - 1996 period (under Chief Justice Malcolm Lucas), when the constitutional error percentage was 55%. The Court, however, ruled most of them harmless, reversing only 4% of cases overall. As a result, nearly all innocent victims were denied justice, Fletcher believing the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) was a key reason why, saying:

"If you have been wondering why Kevin Cooper is still on death row, a significant part of the answer is AEDPA," adding, "Fifty years ago, a clemency plea to a governor in a capital case meant something. Governors took seriously their responsibility to decide whether a death sentence should be carried out."

In recent decades, notably post-9/11, "clemency pleas have been a useless exercise. Governors, sensing political vulnerability....almost never grant" it. Further, "we know that poverty and race make a difference." As a result, "racial minorities make up a disproportionate percentage of death row inmates."

"To state the most alarming problem, there is not only a chance that we have executed, and will execute, (innocent) people....There is a virtual certainty that we have done so, and if the system remains as it is, that we will do so in the future."

Under America's capital punishment system, consistency and evenhandedness aren't possible, or as Professor Black explained: The possibility of judicial fairness for accused minorities is as likely his "learn(ing) to speak decent Japanese by the end of the month."

In his separate Furman v. Georgia opinion (1972), Justice Thurgood Marshall said if ordinary people knew all the facts in capital cases, they'd find it "shocking to (their) conscience and sense of justice," and thus flatly unconstitutional.

Fletcher shares that view, adding:

"I think that sooner or later, probably not in my lifetime, but perhaps in some of yours, we will abolish the death penalty in this country. Perhaps, we, as a country, will eventually have seen enough" injustice, mostly affecting society's poor, disadvantaged, and unwanted, Kevin Cooper a notable example.

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.

Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

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