Article in Frontiers of Justice Vol I:

THE DEATH PENALTY

A Relic of the Past

by STEVEN KING AINSWORTH

The power to kill is awesome. Why do we allow those ruling in our names to use it against us? Why did we carry capital punishment across the Atlantic when we were escaping the bloody excesses of monarchy ourselves? How has capital punishment been used by the powerful to quash the less powerful in our society?

These questions and others I will attempt to address in the following pages and hopefully offer you, the reader, some points to ponder while you decide if capital punishment is necessary in America today.

In this time of revisionist history, I am sure we all realize that Columbus did not "discover" America, but simply opened it up to exploitation by himself and by those people who followed him. Columbus used capital punishment to enforce an economic policy on the island that is now known as Haiti: "In the province of Cicao, Indians who brought to him a certain quantity of gold were given a copper token to hang around their necks. Those found without a copper token had their hands cut off and bled to death."1 This was in 1495 and throughout the 1490's Spaniards took prisoners among the Arawaks, the native population of the Caribbean Islands, hanging them and burning them alive at will.

Columbus, Pizzaro, Cortes, Coronado, and all of those who wreaked havoc through South America, Meso-America, Mexico, and the Southwestern United States during the 15th and 16th centuries did not use the sophisticated cover of judicial assassination to justify the slaughter. They simply said that they were acting out the will of God, their God, in bringing the heathen savages to their knees.

The first English ship bringing colonists to America had barely set anchor in Chesapeake Bay in the Spring of 1607 before the Ruling Council of Virginia (Jamestown) acted upon their own in a tribunal of sorts. George Kendall was condemned and "put to death for attempted mutiny,"2 in December of that year. Our English forefathers had not even been in this land eight months before the judicial homicides began! Mr. Kendall may well have been the first white man to suffer capital punishment in America.

The first law recorded in Plymouth Colony on December 27, 1623, established the trial by jury system on the North American continent. Seven years later John Billington, a signatory of the Mayflower Compact, one of our nation's founding documents, "was sentenced to death in the colonies' first capital case."3

Justifying their use of capital punishment on the Old Testament law of Leviticus ' the Puritans of New England, the same crowd that brought us Thanksgiving, put to death a teen-aged servant named Thomas Granger for bestiality. Leviticus had written: "The man who lies with an animal, he must die and the animal must be killed."4 Young Tom could not identify the specific animals he acted lewdly with, so all "the animals were cast into a pit and killed as he watched then he was put to death, in September 1624."5 Before you decide the Puritans were right in following Leviticus, let me hasten to add that the Old Testament also prescribes the death penalty for disobedient children.6 Could those who gather in support of the death penalty today who use "eye for an eye" as a justification for their support stone a child to death?

The infamous Salem witchcraft trials of 1692 in Massachusetts were another legal remedy, Nineteen men and women were executed on the strength of very dubious testimony by others who may have been coerced into saying such things as: "Her yellow bird sucked betwixt her fingers." I am sure every little old lady in America today who shares her world with a canary who eats from her hand would be astonished that such behavior could be considered the work of the devil, and that they would be subjected to capital punishment for such carryings on with their feathered companions.

Oppression of the poor and capital punishment have long gone hand in hand in white America. When Maryland opened its first courts, in 1638, legislation concerning servants (indentured servants, usually poor whites from England) was one of the priorities at the time, because of the number of runaways. "Unlawful departures"7 was punished by hanging. Quitting a low-paying job had serious consequences in 1638.

Inequality in our justice system was clearly evident as early as 1675 where in New York Colony it was declared: "According to the council ruling of 1675, there were two sets of laws, one for the colonists and one for the Indians."8 Still separate laws governed black slaves in our early history. An early Virginia Act of 1705 declared the punishment for arson by a Negro could be having "the right hand cut off, the head severed from the body, the body divided into four quarters, and head and quarters set up in the most public places of the country."9 Vestiges of these early examples of oppression of the poor, inequality, and racism still permeate the American justice system today.

The separation between justice for the rich and justice for the poor is illustrated at least as far back as 1710. In the case of a rich lawyer named Thomas Macnemara, he was allowed to plead guilty to "homicide by chance medley,"10 and was branded with the letter "M" on the right hand. A poor white man or woman, indentured servant, slave, or Indian would have suffered a greater punishment for homicide, perhaps "limbing," which entailed hitching the arms and legs of the condemned human being to the harnesses of horses and while the victim "raised his head and looked at himself ... the four horses tugged (in different directions) ... and carried off the two thighs after them .... Then the same was done to the arms."11 Quite a gruesome form of capital punishment, but still in existence as late as 1790 when our founding fathers found it necessary to mention it in our Constitution.

Racism, public fear, and coerced testimony played an integral part in the trial and condemnation of Thomas Jeremiah (freed slave) in 1775. Public outrage prohibited then-governor Campbell from granting Jeremiah clemency despite his belief that the witnesses, "terrified at the recollection of former cruelties," had "perjured themselves to escape punishment ... I could not save him, my Lord."12 I would opine that many governors today face a similar dilemma in commuting the condemned, unlike Theodosius 11, Emperor of Rome (423-450), who may well have been the first abolitionist of the death penalty. Theodosius "was well read, particularly the Scriptures. He fasted, he disliked capital punishment, and frequently pardoned those who had been condemned to death."13 In the face of public outcry and political ambition, commutation or clemency is rare for the inhabitants of death row in the 20th century.

In 1750, Pennsylvania law proscribed for a second offense of "any" sort that "you were stood in a cart with a rope around your neck and driven beneath the gallows, and then the cart went off without you, leaving you to dangle."14 House burning was punishable by death in Ohio in 1788; 350 crimes were punishable by death in the 1780's.15 The 1705 Virginia slave code called for the punishment of runaways by dismembering (limbing). In 1723, Maryland would cut off the ears of blacks who struck whites or would hang them. The death penalty was used extensively to quash real and imagined slave rebellions and uprisings of poor whites in our early history.

In 1721, twenty-one blacks were executed for arson in New York, some were hanged, one broke on the wheel, one hung alive in chains in the town and "one was burned over a slow fire for eight to ten hours ... all this to serve notice to other slaves."16 Twenty years later, in 1741, after a trial full of lurid accusations by informers and of forced confessions, two white men and two white women were executed along with eighteen slaves, thirteen of whom were burned alive. Informers, paid or otherwise, have served the hangman well. Going back to 1661, in an "imagined" slave conspiracy in Gloucester County, Virginia, four blacks were executed on the word of a paid informer who received his freedom and 5,000 pounds of tobacco for his testimony just as the colonists used capital punishment to put down and/or respond to rebellion, Charles II used it against whites rebelling against crown rule in the colonies. In 1676, a benchmark act of American independence, "Bacons's Rebellion," was put down by hanging the rebels in accordance with private instructions from the Duke of York who swore, "By God, Bacon and Bland should die!"17 Bacon died before he could be caught and hanged, but 23 of his followers felt the royal noose, including Bland.

For those who still are under the delusion that capital punishment serves as a deterrent, we should recall that our independent America was founded on an act of rebellion, criminal treason in the face of certain hanging! On June 12,1775, the British general, Thomas Gage, issued a proclamation that all persons who would lay down their arms would be pardoned. Those who did not would face the gallows. Both John Hancock and Samuel Adams were singled out by Gage for this Englishman's right-death by hanging. Luckily, neither was captured. In fairness, the prospect of a royal rope did not go unnoticed by the patriots. One diarist wrote, "If I should fall into the hands of the British, the gallows will be my fate. The terrors of the gallows are not to be conquered, but I must indulge the hope that I may escape it."18 In 1776, on the day the Declaration of Independence was being signed, Mr. Harrison, a portly man of Virginia, commented to Mr. Gerry, a lanky man of Massachusetts, "When the hanging scene comes to be exhibited I shall have the advantage over you on the account of my size. All will be over with me in a moment, but you will be kicking in the air a half hour after I am gone!"19 I think the issue of deterrence can be put to rest with their signatures on our historical document, and it can be said that the death penalty was not a deterrent to criminal action in 1775, nor is it in 1997.

All of this maiming and hanging was taking place in a land full of people who, for the most part, did not practice a form of capital punishment amongst themselves, as is illuminated in this Native American response to the Governor of Maryland in 1635, who was demanding that Indians who kill Englishmen face English law. The Indian said, "It is the manner amongst us Indians, that if any such accident happen wee doe redeeme the life of a man that is so slaine, with 100 armes length of beads and since you are heere strangers, come into our country, you should conform yourselves to the customes of our country, than impose yours upon us."20 We did not conform and we did not respect the Native American population. We exacted violence for violence and introduced vengeance to the land! "In 1642, when Claes Rademaker was murdered in Albany (New York), the Indian who did it said that as a small boy, he had come with his uncle to trade beaver, but that some of the Swannekins [Dutch traders] had robbed his uncle and killed him. The boy swore revenge, which he nursed until he was grown."21

Three events mark the closing of the 18th century in America: the end of the Revolutionary War, the writing of our Constitution, and the opening of the first penitentiary. It was at this juncture in our history when we should and could have rid ourselves of the terrible vestige of European monarchial power-capital punishment.

Heretofore, "the one punishment that can easily be inflicted by a state which has no apparatus of prisons and penitentiaries is death,"22 and it could be said that "our social authorities relied on the ritual of Execution Day to promote civil and religious order."23 I have often pondered if it is not the fact that Christianity was founded upon and depended upon the very act of [Roman] capital punishment for its faith which has made it so easy for our Judeo-Christian nation to accept it. In my mind, Christ's words on the Mount, "You have heard that it was said, an eye for an eye, and a tooth for a tooth, but now I tell you do not take revenge on someone who wrongs you"24 would at least give pause to those of the Christian faith.

This was not to be. The new foundling government of the United States acted against dissidents to their rule in the same manner as their British masters did before them! In 1787, just four years after Britain and the United States signed the peace treaty that ended the Revolutionary War, Daniel Shays and a group of angry farmers rose in armed protest against the new Massachusetts government's economic policies, and were defeated. Several members of Shays' rebellion were tried and condemned. Samuel Adams, once a candidate for bloody Britain's noose, had this to say in opposing clemency for Shays' followers: "In monarchy the crime of treason may admit to being pardoned or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death." Daniel Shays was pardoned, but many others were hanged.

In the fall of 1787, the United States Constitution was signed and, despite its opening line, "We the People . . .," it carried with it the stench of racism and oppression with the decree "excluding Indians" and counting servants and slaves as "three-fifths of a person" in determining a state's number of representatives in Congress.

The main body of the Constitution did have in its composition one very important provision, that being: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."26

The placement of the right to habeas corpus in the main body of the Constitution signifies its importance to the citizenry. Congress first codified the writ as a judicial remedy in the Judiciary Act of 1789, which gave federal courts the power to issue relief to prisoners "in custody under or by colour of law of the authority of the United States." The statutory precursor to the present day writ is found in the Habeas Corpus Act of 1867 and presently codified in 28 U.S. Code Sections 2241-2256 (1982). The writ gives the accused and convicted the right to present new evidence-in some cases actual evidence of innocence-or to show why there was a technical or real miscarriage of justice, thus allowing a new trial and/or release of a person from unjust restraint and/or execution. It is a foundation stone of justice.

By covert default, reactionary legislation and judicial politicizing, we have allowed a significant alteration to that foundation. The Anti-Terrorism and Effective Death Penalty Act of 1996 placed severe restrictions on all citizens' right to habeas corpus. It should be noted that a 1996 update to a 1993 staff report by a judiciary committee of the U. S. House of Representatives found that since 1973, 65 death row inmates were eventually cleared [via writ of habeas corpus] by the federal court system and released. It is estimated that 40% of the state capital crime convictions reviewed on writ of habeas corpus prior to 1996 were overturned by the federal courts because of violations of the constitutional rights afforded to all citizens.

In the late 18th century, laws were beginning to be changed to provide "milder punishments for certain crimes for which infamous and capital punishments are now inflicted,"27 and the rise of penitentiaries to house criminals took hold in America.

Cesare Beccaria's "An Essay on Crimes and Punishments," published in Philadelphia in 1778, began to capture the minds of America's ruling elite and social reformers. Beccaria asserted that no one ever gave to any other [not even the state] the right to take away a life. He opposed capital punishment and proposed "perpetual slavery-lifetime imprisonment-as a more effective deterrent because it was a more horrifying punishment than death for the spectator to contemplate."28

At the same time [1789] Thomas Jefferson and James Madison were writing the Bill of Rights, the first ten amendments to the Constitution. Madison praised Beccaria's book and was a death penalty abolitionist. Thomas Jefferson gave credit to Beccaria for awakening the world to the senseless severity of capital punishment and had a copy of Beccaria's book in his personal library. Did they intend to abolish capital punishment when they wrote the Eighth Amendment phrase ". . . nor cruel and unusual punishments inflicted"?29 Does the Fifth Amendment's clause, ". . . nor shall any person be subject for the same to be twice put in jeopardy of life and limb"30 support the death penalty?

Obviously, as I have pointed out in this writing, capital punishment was not unusual on the North American continent up to this point. However, can any one deny that killing a viable human being is not cruel?

In the contemporary sense, is it not cruel and unusual punishment to hold a human being in a small cell at the point of a gun for "X" number of years so that at some future time, a time you tell him some days ahead, he will be physically overwhelmed, strapped down to a table, his arms out in cruciform and punctured by steel needles, his living blood pumped full of deadly drugs and he will gasp and grimace, change colors and expire-all the while 20 or 30 invited guests are looking on?

What can the participants in such a macabre ritual be thinking? It's a job? We are following orders? It's necessary for our society and state security? Sounds a lot like the defense at Nuremburg, doesn't it? As we no longer "limb' people, why can't we set aside the other relic of the past, the taking of life in an act of capital punishment?

The phrase "cruel and unusual" has a long history It started in Britain, as most of the laws of America did. It appears in the British Bill of Rights of 1688 that the taking of life or limb is in fact a cruel and unusual punishment.

During the period of Henry 11 (1154-1189), in the Constitutions of Clarendon, life and limb are linked with punishment. The Petition of Right of 1628 referred to both of the documents in its proclamation that "no one man shall be forejudged of life or limb against the form of great charter and the law of the land." The modern British Bill of Rights expressly refers to these great legal doctrines and declares that punishments that take life or limb are indeed cruel and unusual and may not be inflicted without suspension of the law. England finally abolished the death penalty in the mid-1900's and reaffirmed that fact again in 1994.

We should follow them. The path is elucidated by the finest documents of law made by man:

1162 - Constitutions of Clarendon

1215 - Magna Carta

1620 - The Mayflower Compact

1628 - The Petition of Right

1688 - The British Bill of Rights

1765 - Declaration of Rights

1774 - Declaration of Rights

1776 - Declaration of Independence

1778 - Articles of Confederation

1787 - Constitution of the United States

1789 - The Bill of Rights

The abolition of the death penalty is a natural evolutionary step in the development of man's law and it was brought up in the summer of 1784, when the framers of the Constitution convened a committee where the Eighth Amendment's clause barring "cruel and unusual" punishments was discussed. Samuel Livermore told the assembled members that "the clause barred death penalty,"31 and shortly thereafter the members voted on the am( merit and it passed by a considerable majority.

In 1792, Dr. Benjamin Rush, a leading opponent of capital punishment and a proponent of prisons, urged the new Republic of the United States to shed capital punishment as a relic of monarchial excess: "The United States have adopted these peaceful and benevolent forms of government. It becomes them therefore to adopt their mild and benevolent principles. An execution in a republic is like human sacrifice in religion. It is an offering to monarchy and to that malignant being who has been styled a murderer from the beginning, and who delights in murder, whether it be perpetuated by the cold but vindictive arm of the law, or by the angry hand of private revenge."32

With the advent of prisons, executions became more and more private affairs. The days of public executions were coming to an end in the urban East as the 19th century began. 'Private executions were accessible only to a selected few. They became theatrical events for an assembly of elite men who attended the execution by invitation, the elite segment of society gathered at the private execution to celebrate extinction"33 of a human being, a V.I.P. system still extant today. Do you even wonder what motivates these people to watch someone be judicially assassinated?

There were a few victories for the opponents of capital punishment in the years before the Civil War. In 1847, Michigan abolished the death penalty. The New York Society for the Abolition of Capital Punishment was formed in 1844, the Massachusetts Society in 1845. A petition by women in the Pennsylvania Legislature contained 11,777 names and made the point succinctly that it is the "poor who are executed,"34 while the more wealthy universally escape the penalty. By 1853, both Rhode Island and Wisconsin had abolished capital punishment.

 

III

The Civil War brought the discussion of abolition of the death penalty to an end for some time and the use of capital punishment continued. In 1874, authorities quashed the labor movement of the "Molly Maguires" by executing eleven of its leaders. In 1886, a bomb went off in Haymarket Square, Chicago, Illinois. Eight anarchists were put on trial for their ideas and literature. Only one was placed at the scene of the crime. All were sentenced to death, four hung within a year. Later, Governor John P. Altgeld pardoned the remaining men in the belief that they were truly innocent of the crime. In 1890, William Kemmler was the first person executed by electrocution at Auburn Prison, New York. The United States record for execution en masse was the hanging at Fort Snelling, Minnesota of 38 Lakota Sioux who were guilty of protesting violations of their treaty rights by whites in the 1890's.

In 1891, fifteen black farmers were summarily executed in Arkansas for arson and murder. In 1893, several Italian immigrants were lynched in New Orleans. In 1915, Joe Hill was executed by a firing squad in Utah for a killing in which there was no direct evidence presented in court that he committed the murder. In 1927, Nicola Sacco and Bartolomeo Vanzetti were executed as "police broke up marches and picket lines with arrests and beatings and troops surrounded the prison as they were electrocuted." It is now believed that the two were innocent.

The 1950 trial of the Rosenbergs featured coached and coordinated testimony by government witnesses, one a confessed liar! The trial judge and prosecutors conferred in secret to ensure that Ethel and Julius Rosenberg were sentenced to death. In furtherance of this artifice of justice, the Attorney General of the United States and the Chief Justice of the United States Supreme Court met in secret and the Chief justice assured the Attorney General that no stay of execution would stand. In fact, the Chief justice dissolved an issued stay, and on 19 June 1953 the Rosenbergs were electrocuted.

 

IV

Hundreds upon hundreds of human beings have been executed in the United States since the hanging of George Kendall in 1607. Men, women, children, black, red, yellow, white, criminals, political dissidents, labor activists, farmers, civil protestors, immigrants, illegal aliens, miners, and many innocents among them have met the executioner's hand. Even today, the Rehnquist court seems to believe that it may be constitutional to execute a human being for a crime he did not commit,36 as long as his trial was fair.

In 1972, when the California Supreme Court ruled that the then-death penalty statutes were unconstitutional,37 it began to look as if we as a society may have made a humane decision. California's decision was followed some months later by the United States Supreme Court in Furman v. Georgia,38 which temporarily stymied the use of capital punishment by states clamoring for the blood of their own citizens. After the decisions in Gregg v. Georgia and Woodson v. North Carolina,39 in 1976, the tide turned red again with the consensual execution in Utah of Gary Gilmore in 1977. The nation had once again resurrected capital punishment and political aspirants raced to see who could kill the most constituents.

The brief, very fleeting period of national abolition of capital punishment and the ten-year hiatus between the last execution in Colorado in 1967 and the 1977 execution of Gary Gilmore in Utah, are our only experiences in national abolition of the death penalty. Ten years of human salvation in 390 years of judicial homicide. Did we really give abolition of capital punishment a chance?

On November 21,1993, President Clinton-praising the 1993 crime bill that expands the use of the death penalty in 60 federal statutes-noted with unintended irony, "Our disregard for life in this nation can be seen coast to coast."

What example to our youth is such unrestrained use of capital punishment? As long as the national and state governments use the law to kill individuals they deem beyond the pale, then the same rationale will continue to be used in the streets. It is analogous to blowing smoke in your kid's face and telling him not to smoke. By law or bullet, killing is killing-there is no gray area in death.

Nothing has really changed in the post-Furman era in the application of the new death penalty laws. Only the words have changed. Condemnation and execution are still the prizes of the poor. Almost 100% of the persons executed from 1930 until 1967 were poor.40 Almost without exception, people on death row today are poor. Clinton Duffy, former Warden, San Quentin State Prison, says, "Only the poor and underprivileged are put to death. In the 60 years I have been around prisons I have never known of one man who had wealth or position who has ever been executed.41 As in almost all legal matters in America, one usually ends up with the degree of justice that one can afford.

You may say, of course, given my present position on death row, that it is self-serving of me to plead poverty and point out the injustices of capital punishment. I realize that the last thing a free, law-abiding citizen wants is a lecture by a condemned killer. But it would behoove a reasonable, thinking person to study this volatile life-and-death issue before reaching a conclusion about its use as a punishment. It is the job of thinking people, as Albert Camus suggested, not to be on the side of the executioners.

v

The costs involved in the capital punishment scheme are astronomical. I am here in this death row cell now, held at the point of a gun, in order that I might be murdered in the future, I and others like me have supported a vast network of private citizens and civil servants to see us to this end--judges, wardens, guards, lawyers, district attorneys--until the final moment when the executioner executes. It has been reckoned that the good citizens of California spent approximately $5 million to eventually produce the cyanide-ridden cadavers of Robert Alton Harris (executed 21 April 1992) and David Edwin Mason (executed 24 August 1993).

Vengeance is costly because most people charged, convicted and condemned to death are poor, so the taxpayers are footing the bill for both sides. I know of no person on the row who has his own attorney for appellate purposes, and know of only one or two who could afford a private attorney at their capital trials. The forces needed to defeat a capital charge and conviction are so enormous that very few people can afford it; those that can and do are almost always not sentenced to death. The fact is, one can buy justice in America.

If everyone convicted of killing a human being were subject to the death penalty, then it might be a viable practice-but everyone is not, and it is little more than a lottery of death, a lottery operated by the county district attorney. It is at his (or her) whim and caprice that a tiny minority are chosen to participate in this ritual-choices no doubt based on racial prejudice, the economic condition of the defendant, and the district attorney's own political ambition.

Persons who undertake the task of administering justice impartially should not be required--indeed, they should not be permitted--to finance campaigns or to curry favor of voters by making predictions or promises about how they will decide cases before they have heard any evidence or argument. A campaign promise to be 'tough on crime,' or to 'enforce the death penalty,' is evidence of bias that should disqualify a candidate from sitting in criminal cases."

Justice John Paul Stevens, 1996.42

The political career of George Deukmejian is a case in point. From district attorney to governor, his whole career was built on the trigger rhetoric that surrounded the death penalty. He left the State of California with the largest prison population in the western world, second only to Red China, and the taxpayers with a multi-billion dollar deficit. No one was executed during his tenure at the capitol. While he shouted about crime, prisons, and death, he did nothing about the roots of the problems and left the state in fiscal ruin.

The power vested in the Attorney General's office and the tax money it controls are immense. In a 1982-83 Shasta County, California death penalty case, the defendant, Mr. Proctor, was found guilty of the crime but the jury deadlocked 11-1 for death in the penalty phase. The defense attorney suggested that the defendant "might consider" accepting a life without parole sentence and forego an appeal-a move which would have saved Shasta County thousands of dollars. For some "higher reason" the district attorney would not agree, even after the County Auditor advised that the agreement would be best for the county coffers.43

Mr. Proctor was subsequently retried as to penalty and sentence death. Now the county and the state taxpayer are faced with the cost capital crime appeal and collateral litigation, costs which were estimated a minimum of $600,000.00 in 1984.44

Factor in annual inflation and multiply that by the 450+ men and women on death row in California today and you are talking about a lot of libraries, schools, youth programs, health care, additional law enforcement officers, drug and alcohol treatment programs, child abuse prevention clinics, spousal abuse programs, jobs programs--social spending that actually attacks the roots of crime, programs that are in essence victim prevention programs.

The other glaring inequality in our capital punishment design is its racist application. The arbitrariness and caprice found unconstitutional in Furman v. Georgia still exist in the post-Furman application. The 1990 GAO report, Death Penalty Sentencing: Research Indicates Patterns of Racial Disparities45 well illustrates the racial disparities in its application. This report comes from an entity of our own government-can we possibly ignore it?

You might say, "Damn the Constitution-speed up the executions!" If you do, you are wrong. Curtailment or infringement of a constitutional right after conviction can lead to terrible consequences. A lot of capital cases are made with suspect evidence and false testimony, crime partners exchanging false testimony for leniency, jailhouse informants exchanging testimony for plea bargains-all accepted as truth by the whim and caprice of the local district attorney.

A fine example of enterprising jailhouse informants was brought to light by the TV program "60 Minutes," which documented the activities of snitches in the Los Angeles County Jail system. These informers would impersonate county officials via telephone to gather data from various county authorities, then manufacture evidence with little or no factual basis, presenting this bogus info as pure truth to a jury-with the zealous assistance of the case prosecutor. The problem illuminated in Los Angeles is systemic throughout the American criminal justice system. It is the nation's shame if a person is executed wrongly as a result of false testimony.

At last report, 125 men currently sentenced to death at San Quentin do not have qualified counsel to represent them on automatic appeal or in an initial collateral attack on their confinement via state habeas corpus, as is now required by a "political pronouncement" emanating from the Lucas court (California Supreme Court) and also indicated in the Rehnquist court's decision in McClesky v. Zant. Both of these "political pronouncements" were from politicized courts reacting to the hue and cry to streamline the capital appeal process by limiting habeas corpus filings to one in state court and one in federal court. The aforementioned Anti-Terrorism and Effective Death Penalty Act of 1996 was a direct result of the McClesky decision of 1991.

A warning to the self-righteous: these new streamlined measures can and will be applied to non-capital cases as well.

VI

Faced with the myriad of legal machinations involved in retaining the death penalty in the post-Furman era, Supreme Court Justice Harry Blackmun finally threw in his towel with this comment in his dissenting opinion in Callins v. Collins:47

 

"For more than 20 years I have endeavored-indeed struggled-along with a majority of this Court, to develop procedural and substantive rules that would lend more than mere appearance to fairness of the death penalty endeavor.

"Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.

"From this day forward, I no longer shall tinker with the machinery of death."

United States Supreme Court Justice Lewis F. Powell, Jr. had a similar revelation which came to light in a 1995 biography written after his retirement. In it he disclosed a response to a question about which of his court decision votes he would like to change. He said the one he would change is his vote in the majority rejecting McClesky v. Kemp,48 in which the Court rejected overwhelming evidence of the racist application of the death penalty in America. The Court side-stepped this glaring fact by stating McClesky had not proven racial prejudice in his case specifically. McClesky was decided by a one-vote (5-4) majority.

Both justice Blackmun and justice Powell were in the majority block who voted to resurrect capital punishment in America in the 1976 Gregg v. Georgia case. The late revelations did not matter one scintilla to the 345 human beings executed since 1976!49

Nineteen ninety-six was a banner year for judicial assassinations. Thirty-two had been executed by mid-September. I believe that, rather than the further destruction of the writ of habeas corpus and infringement upon our constitutional rights, we should follow the sage advice of justice Thurgood Marshall:

"If it is impossible to construct a system capable of accommodating all evidence relevant to a man's entitlement to be spared death-no matter when the evidence is disclosed-then it is the system, not the life of the man sentenced to death, that should be dispatched."50

And that of the late Governor Edmund G. Brown, who allowed many executions to take place during his tenure in office, and who also commuted some death sentences; he said, "The death penalty has been a gross failure; beyond its horror and incivility, it has neither protected the innocent nor deterred the wicked. It is inflicted upon the weak, the poor, the ignorant."

Lift the threat of death from the heads of the 3,15351 death row convicts. Life imprisonment will serve the same purpose at less cost, and perhaps more of the condemned will come to the point that Michael B. Ross, on death row in Connecticut, has reached. He recently said, ". . . This sense of reconciliation that I yearn for the most, reconciliation with the spirit of my victims, reconciliation with the families and friends of my victims, and finally reconciliation with myself and God-this will be the final part of my transformation and undoubtedly the most difficult.52

Killing is cruel no matter who is doing it, for whatever purpose. Our leaders should lead by example and abolish the death penalty. Its use has brutalized mankind for centuries and it is demeaning to our society. Now, as we enter the 21st century, it should be set aside as a relic of the past.

Haven't we killed enough?

Steven King Ainsworth has over 25 years of prison experience, the last 17 years of which have been spent on death row at Sao Quentin, waiting to be executed for the crime of murder with special circumstances of robbery and kidnap which took place in 1978. He is an accomplished artist, and his work appears in this publication, along with his statement of the importance of art in his life as a death row inmate.

Footnotes

  1. A People's History of the United States, 1492-Present. Howard Zinn (1995).

  2. Wilderness at Dawn, Ted Morgan.

  3. Records of the Plymouth Colony (1855).

  4. Leviticus 20:15.

  5. William Bradford. of Plymouth Plantation, 1620-1647 (1987).

  6. Deuteronomy 21: 20-21.

  7. Abbot E. Smith, Colonist in Bondage (1947).

  8. Indian Affairs in Colonial New York, Allen W. Trelease. (1960).

  9. NVHS Manuscript collection.

  10. The Dulany's of Maryland, Ted Morgan. (1955).

  11. Michele Foucalt, Discipline and Punish, and the Birth of Prison, (T,. Alan Sheridan, Pantheon Books 1977).

  12. A Troublesome Community: Blacks in Revolutionary- Charlestown 1765-1775 (1976).

  13. J. B. Bury, History of Later Roman Empire.

  14. Gottlieb Mittenburg's Journey (1989).

  15. T. Sellen, Ed., F. Hartung, Trends in the Use of Capital Punishment, Murder and the Death Penalty, p. 11 (America. Academy of Political and Social, Sciences, Philadelphia, 1952).

  16. A People's History of the United States, 1492-Present Howard Zinn (1995).

  17. Beginnings, Progress, Progress, and Conclusions of Bacon's Rebellion in Virginia in the Years 1675 and 1676, by T.M.

  18. James Thacher, A Military Journal During the Revolutionary War from 1775 to 1783 (1823).

  19. Biography of the Signers of the Declaration of Independence, John Sanderson (1827).

  20. Nash, Gary B., Red, White, and Black: The Peoples of Early America Englewood Cliffs; Prentice Hall (1970).

  21. Wilderness at Dawn, Ted Morgan.

  22. Pollack and Maitland, History of English Law, Vol. 11, p. 452.

  23. Rites of Execution, Louis P. Masur (1989).

  24. Matthew 5: 38-39.

  25. A Peoples History of the United States, 1492-Present, Howard Zinn (1995).

  26. United States Constitution, Article 1, Section 9, paragraph 2.

  27. Annals of the Congress of the United States, Fourth Congress (D,!c, 1795).

  28. Cesare Baccaria, An Essay on Crimes and Punishment, 5th Edition Revised and corrected (London, E. Hodson, 1801).

  29. United States Constitution, Eighth Amendment.

  30. United States Constitution, Fifth Amendment.

  31. Bill of Rights, a Documentary History (Chelsea and McGraw-Hill, 1971).

  32. Rush, Considerations on the Injustice and Impolicy of Punishing Murder by Death, Philadelphia, Matthew Carey (1792).

  33. Rites of Execution, Louis P. Masu, (1989).

  34. Petition on Capital Punishment, January 23 to March 5,1847, Library Company of Philadelphia, Manuscript Collection.

  35. Toughin, Louis and Morgan, Edmund, The Legacy of Sacco Vanzetti, New York, Quadrangle (1964).

  36. Herrera v. Collins, 113 S.Ct. 853 (1993).

  37. People v. Anderson, 98 Cal.Rptr. 825 (1972).

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

  39. Gregg v. Georgia, 428 U.S. 153 (1976), Woodson companion case.

  40. Greenberg and Himmelstein, Varieties of Attack on the Death Penalty, 15 Crime & Delinquency, 1969.

  41. San Francisco Chronicle, 13 October 1982.

  42. Justice John Paul Stevens, Address to the opening assembly, American Bar Association Annual Meeting, August 3,1996, t 12; gleaned from, Killing for Votes: The Dangers of Politicizing the Death Penalty Process, a report by the Death Penalty Information Project, Wash. D.C. (1996).

  43. Protor, Death Penalty Worth the Cost? Record Searchlight, 4 Feb. 1983; People v. Protor, 4 Cal. 4th 499 (1993).

  44. Strieb, Executions Under the Post-Furman Capital Punishment Statutes: The Halting Progress From "Let's Do It" to "Hey, There Ain't No Point in Pulling So Tight", 15 Rutgers L. Rev. (1984).

  45. United States General Accounting Office, Report to the Senate and House Committees on the Judiciary, GAO/GGD-90-57, Racial Disparities in Sentencing.

  46. In re Clark, 93 Daily Journal D.A.R. 9671 (1993); McClesky v. Zant, 499 U.S. 467 (1991).

  47. Callins v. Collins, U.S. (1994).

  48. McClesky v. Kemp, U.S. (1986).

  49. The number executed as of 18 September 1996.

  50. Evans v. Muncy, U.S., dissenting opinion.

  51. The number of death row inmates in the United State as of 31 July 1996.

  52. Michael B. Ross, North Coast XPress, V.I. 4, No. 5, August, 1996.