Dead Man Walking (44 page)

By contrast, during the same time period, death penalties handed down by Louisiana juries declined sharply. From 1982 to 1987 juries averaged ten death sentences a year, but in the two-and-a-half years following the rash of executions, juries handed down only two death sentences. See Jason DeParle, “Abstract Death Penalty Needs Real
Executions: Did a Spate of Executions Affect Junes?
New York Times
, June 30, 1991.

9.
The July 26, 1991, CNN/Gallup public opinion poll indicated that of the 76 percent who said they were in favor of the death penalty, 13 percent cited deterrence as a reason, 19 percent cited protection, and 50 percent, revenge. (News Information, Cable News Network, 2200 Fletcher Avenue, Fort Lee, New Jersey 07024.)

In contrast, an earlier 1977 Harris survey cited 59 percent of respondents saying they believed that “executing people who commit murder deters others from committing murder.” This was only one year after the U.S. Supreme Court reinstated the death penalty in
Gregg
, and as yet only the execution of Gary Gilmore in Utah (January 17, 1977) had been carried out. However, by July 1991, when the CNN/Gallup Poll was taken, 150 criminals had been put to death with no detectable decrease in violent crimes occurring. See Louis Harris,
The Harris Survey
(New York: Chicago Tribune, New York. News Syndicate February 7, 1977).

10.
Ted Gest and Jo Ann Tooley, “Data Base,”
U.S. News and World Report
, May 6, 1991: “Public’s view of the best way to reduce crime: more executions — 33%; more crime prevention measures — 65%.”

11.
Marcia Blum, a graduate of Northeastern University Law School, directed the Louisiana Capital Defense Project for the first year. From her efforts and those of Judith Menadue, who followed her, has arisen the Loyola Death Penalty Resource Center, 210 Baronne Street, Suite 608, New Orleans, Louisiana 70112, (504) 522–0578.

12.
Amnesty reports that these ten countries, which each carried out over fifty executions between 1985 and mid-1988, account for 83 percent of all executions recorded. See Appendix 17, Table 1 of
When the State Kills
(p. 263). In the same source, Amnesty reports “as of August 1988, no fewer than 28 prisoners in 12 U.S. states were under sentence of death for crimes committed when they were below 18 years of age” (
When the State Kills
, p. 38).

13.
See Appendix 15 of
When the State Kills
, for Amnesty’s worldwide list of abolitionist and retentionist countries.

14.
When the State Kills
, p. 7.

15.
Furman v. Georgia
, 408 U.S. 238 (1972).

16.
Currently 36 states authorize the death penalty for some types of murder: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.

The death penalty is also authorized under the Federal Air Piracy
Act, 1974 (49 U.S.C. 1472–3) and under the Uniform Code of Military Justice (UCMJ), which lists a dozen crimes — felony murder, espionage, and desertion among them — as punishable by death when committed in time of war. In 1985 President Ronald Reagan signed into law an amendment to the UCMJ extending the death penalty for espionage by a member of the armed services during peacetime (10 U.S.C. 906 (a)). Federal law also authorizes the death penalty for murders committed in the course of major drug activities (21 U.S.C. 848 (e) and witness tampering where a death results (18 U.S.C. 1512).

17.
Gregg v. Georgia
, 428 U.S. 153 (1976).

18.
Historically, a majority of U.S. citizens have consistently favored imposing the death penalty on murderers, at least as measured by responses to the question: “Do you favor or oppose the death penalty for murderers?” In 1936,62 percent said they favored the death penalty; in 1953, 68 percent; in 1972, 53 percent; in 1977, 67 percent; in 1986, 70 percent; and in 1991, 76 percent. Only in 1966, when those favoring the death penalty registered at 42 percent, has public support been less than a majority.

See H. Erskine’s survey of nationwide and statewide polls on the death penalty from 1936 to 1969: “The Polls: Capital Punishment,”
Public Opinion Quarterly
34 (1970): pp. 290–307; Hugo Bedau’s “American Attitudes Toward the Death Penalty” in
The Death Penalty in America
, pp. 65–92; and Robert M. Bohm, “American Death Penalty Opinion, 1936–1986: A Critical Examination of the Gallup Polls,” in Robert M. Bohm, ed.,
The Death Penalty in America: Current Research
(Cincinnati: Anderson Publishing Co., 1991), pp. 113–145.

19.
See the annual Uniform Crime Reports of the Federal Bureau of Investigation (U.S. Department of Justice, Washington, D.C. 20530).

20.
Glenn L. Pierce and Michael L. Radelet, “The Role and Consequences of the Death Penalty in American Politics,”
New York University Review of Law & Social Change
18 (1990–1991): pp. 711–728, esp. p. 714.

21.
See George Gallup, “The Death Penalty,” Gallup Reports 244 and 245 January/February, 1986), pp. 10–16.

A number of surveys of public opinion about capital punishment by Amnesty International have consistently found far less support for capital punishment when those interviewed were presented with specific alternatives to death, such as life without parole, and when the question about capital punishment was asked, not in the abstract: “Do you favor or oppose capital punishment for murderers?” but in the concrete: “Do you favor or oppose capital punishment for juveniles, the mentally retarded, those who have suffered child abuse,” etc. Some Amnesty International polls are summarized in James Alan Fox, Michael L. Radelet, and Julie Bonsteel, “Death Penalty Opinion in
the Post-Furman Years,
New York University Review of Law and Social Change
18 (1990–91): pp. 499–528, at p. 525.

22.
Austin Sarat and Neil Vidmar, “Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis”
Wisconsin Law Review
1976 (1976): pp. 171–197.

See also Robert M. Bohm, Louise J. Clark, and Adrian F. Aveni, “Knowledge and Death Penalty Opinion: A Test of the Marshall Hypothesis,”
Journal of Research in Crime and Delinquency
28 (1991): pp. 360–387.

23.
With Bill Quigley and Barbara Major I helped to found Pilgrimage for Life (now named Louisiana Coalition to Abolish the Death Penalty). It is located at Hope House, 916 St. Andrew St., New Orleans, Louisiana 70130, (504) 522–5519.

C
HAPTER
S
IX

1.
For a probing exploration of the relationship between religion and the practice of retribution, see Susan Jacoby’s
Wild Justice: The Evolution of Revenge
(New York: Harper and Row, 1983).

2.
See Table 1 in Fox, Radelet, and Bonsteel’s “Death Penalty Opinion in the Post-Furman Years.” Over a fifteen-year period — from 1972 to 1988 — a composite 73.3 percent of Catholics and 71.4 percent of Protestants favored death for first-degree murderers while support in the overall population registered at 71.2 percent.

3.
See
The Death Penalty: The Religious Community Calls for Abolition
, published by the National Coalition to Abolish the Death Penalty and the National Interreligious Task Force on Criminal Justice. Copies may be obtained from NCADP, 1325 G. Street NW (LL-B), Washington, D.C. 20005, (202) 347–2411.

See also Philip English Mackey’s work in which he illustrates that some of the most vocal defenders of the death penalty in America a century ago were Christian clergymen: “An All Star Debate on Capital Punishment, Boston, 1854,”
Essex Institute Historical Collections
110 (July, 1974): pp. 181–199.

4.
In the 1980 “Statement on Capital Punishment,” the U.S. Catholic Bishops state: “Allowing for the fact that Catholic teaching has accepted the principle that the state has the right to take the life of a person guilty of an extremely serious crime …”

The state’s right to execute criminals is a long-standing teaching in the Catholic Church. Augustine (354–430) argued that the wicked might be “coerced by the sword” in order to protect the innocent, and Thomas Aquinas (1225–1274) declared the killing of “evildoers” lawful when “directed to the welfare of the whole community.”

For a historical perspective on the Catholic Church’s position supporting government’s right to use force against its citizens, see chapter 5 of Elaine Pagels,
Adam, Eve, and the Serpent
(New York: Vintage Books, 1989), pp. 98–126.

5.
These estimates, computed by Glenn L. Pierce and Michael L. Radelet, were based on an estimated population of 248,239,000 and utilized statistics from the U.S. Department of Justice, 1989 (supra note 4, at 48), and the U.S. Department of Commerce, Statistical Abstract of the United States, 1989, pp. 78, 84 (1990). See Glenn L. Pierce and Michael L. Radelet, “The Role and Consequences of the Death Penalty in American Politics,”
New York University Review of Law and Social Change
18, no. 3 (1990–1991): pp. 711–728, esp. p. 714.

6.
Paul Slovic, Baruch Fischhoff & Sarah Lichtenstein, “Facts Versus Fears: Understanding Perceived Risk,” in
Judgment Under Uncertainty: Heuristics and Biases
Daniel Kahneman, Paul Slovic, and Amos Tversky, eds., (1982), p. 467.

7.
See Pierce and Radelet, “The Role and Consequences of the Death Penalty in American Politics,” op. cit., p. 713.

8.
David von Drehle, “The Death Penalty: A Failure of Execution,”
Miami Herald
, July 10, 1988. See also Robert L. Spangenberg and Elizabeth R. Walsh, “Capital Punishment or Life Imprisonment? Some Cost Considerations,”
Loyola of Los Angeles Law Review
23 (1989): pp. 45–58; Margot Garey, “The Cost of Taking a Life: Dollars and Sense of the Death Penalty,”
University of California-Davis Law Review
18 (1985): pp. 1221–1273; and Massachusetts Bar Association, “The Dollar and Human Costs of the Death Penalty,” in
A Special Issue on the Death Penalty
, April 1992.

9.
Massachusetts Bar Association, “Costs of the Death Penalty.”

C
HAPTER
S
EVEN

1.
Susan Jacoby,
Wild Justice: The Evolution of Revenge
(New York: Harper and Row, 1983), pp. 5, 10.

2.
Crime and Justice Facts
, Bureau of Justice Statistics, 1987.

In 1979 the Louisiana legislature repealed the ten years-six-months release procedure (La. R. S. 15:571.7), which had been operative since 1926, and mandated a life sentence “without benefit of probation, parole, or suspension of sentence” for a number of crimes: first-degree murder — when juries fail to vote unanimously for the death penalty (La. R.S. 14:30); second-degree murder (La. R.S. 14:30.1); aggravated rape (La. R.S. 14:42); and aggravated kidnapping (R.S. 14:44). In 1976 the legislature mandated that those convicted of possession of heroin with intent to distribute must serve a life sentence’ with no possibility
of parole (R.S.40: 966). See Bryan Denson, Punishment: Life Means Life in Louisiana,”
Houston Post
, July 14, 1991.

3.
Jacoby,
Wild Justice
, p. 289.

4.
Ibid.
, p. 11.

5.
See Julian H. Wright, “Life-Without-Parole,”
Vanderbilt Law Review
43, pp. 530–568.

According to research conducted by the National Coalition to Abolish the Death Penalty, as of August 1992, seventeen death-penalty states have “true” life-sentences-without-parole: Alabama, Arkansas, California, Connecticut, Delaware, Illinois, Louisiana, Maryland, Missouri, Montana, Nevada, New Hampshire, Oklahoma, Oregon, Pennsylvania, South Dakota, and Washington; and twelve death-penalty states have “life-without-parole” sentences where parole is possible after a minimum number (at least twenty) of years served: Arizona, Colorado, Florida, Kentucky, Indiana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, Tennessee, and Texas. Of non-death-penalty states eight have “true” life-sentences-without-parole: Hawaii, Iowa, Maine, Massachusetts, Michigan, Rhode Island, Vermont, and West Virginia; and three have minimum time served statutes: Alaska, Kansas, and North Dakota. Ten states have unspecified life sentences. Of these the death-penalty states are: Georgia, Idaho, Mississippi, New Mexico, Utah, Virginia, and Wyoming; and the non-death-penalty states are: Minnesota, New York, and Wisconsin.

See the “Alternative Sentencing Summary” Nov. 1993, published by the National Coalition to Abolish the Death Penalty (see note 20, chapter 3).

6.
Ibid.
, pp. 542–543. Kentucky’s Truth in Sentencing Act in 1986 (Ky. Rev. Stat. Ann. 439.3401(3) [Michie/Bobbs-Merrill Supp. 1988]) mandates that violent offenders serve at least 50 percent of the terms of years imposed against them before becoming eligible for parole.

7.
See Elizabeth Leech, “Kansas Senate Votes Down Death Penalty,”
Kansas City Times
, April 4, 1987.

8.
K.S.A. 21–4622, effective July 1, 1990.

9.
South Carolina Constitution, article IV: 14.

10.
Amnesty International polls conducted in six states consistently showed that citizens prefer life imprisonment to death when offered a choice between the two alternatives. Presented with the choice, support for the death penalty in Georgia (Dec, 1986) registered at 46 percent; in Kentucky (Dec, 1989), 36 percent; in Maryland (Nov., 1988), 45 percent; in Massachusetts (Sept., 1990), 44 percent; in New Mexico (Oct., 1990), 50 percent; in New York (March, 1991), 36 percent, and in Oklahoma (Dec, 1988), 48 percent. See note 21 in chapter 5.