Spring 1998
Karla Faye Tucker, executed on February 3, became the first woman Texas has put to death since the civil war. Her story captured national headlines, including a segment on 60 Minutes in January. She was the second woman executed in the U.S. since the death penalty was reinstated in 1976, a fact that fueled the media's interest.
Equally pressworthy was the broad array of people calling on Governor George Bush, Jr., to stop her execution: Dead Man Walking author Sister Helen Prejean csj, human rights activist Bianca Jagger, Pope John Paul II, Pat Robertson and his Christian Broadcasting Network's 700 Club, as well as the detective who arrested her, the attorney who prosecuted her and a juror who sentenced her to death. Divergent in their views on the death penalty, all agreed that the Karla who was executed was not the same person who participated in a 1983 brutal pickaxe murder. Supporters contend that her conversion to Christianity and resulting transformation on death row meant that she no longer posed a threat to anyone. Peggy Kutz, the sister of the man Karla killed, said she believed Karla's conversion was genuine and hoped that her life would be spared so that she could continue to minister to other prisoners.
Karla's Story
Karla's history of prostitution and substance abuse began in her pre-teens, when she shared heroin with her addicted mother. By 1983, she was, in her own words, "living from second to second with no thought for the future." A three-day, sleepless binge on alcohol, speed and a half-dozen pharmaceuticals culminated in the murders of Deborah Thornton and Jerry Lynn Dean. The jury never learned how intoxicated she was at the time of the murders.
Karla never made excuses for her involvement in the murders. She told the Houston Chronicle:
"If you acknowledge that a person has changed, that doesn't mean all of a sudden that they are excused for their actions, or that they are going to walk out of here tomorrow. My values are different, my morals are different, the way I look at the world is different."
Many have noted that Karla's transformation on death row was not extraordinary, and the fact that she was female, white and photogenic explained, at least in part, why her execution drew such international attention. In contrast, 37 men were executed in Texas last year with little press coverage, even through the summer, when two people were being put to death each week.
Karla herself said she should not be treated differently. "Gender shouldn't be an issue, period," she said during the same Chronicle interview. "Either you believe (in the death penalty) for everyone, or you don't believe in it for anybody."
Ultimately, Karla's gender did not stop her senseless execution. And that fact points to the real lesson of her case: substantive, exhaustive, and impartial procedures for clemency on humanitarian grounds do not exist in Texas or the rest of the country. Karla's case raises some probing questions for both sides of the death penalty debate.
No Mercy
Karla Faye Tucker stands as an example of the power of faith-based rehabilitation. Former Houston prosecutor Rusty Hardin said of her case, "If you believe in the commutation process, it's the best I've ever seen."
So why did such a restored person find no mercy from the Texas Board of Pardons and Parole? "Although, historically, clemency in this state and around the country has always dealt with mercy and rehabilitation," said Karla's lawyer David Bottsford, "those factors don't matter" in Texas today. When deciding whether to stop an execution, the Governor and his 18-person Board of Pardon and Parole only considers whether a defendant might actually be innocent or whether they have had access to the courts.
Since 1972, there have been 37 commutations in Texas. All of them came at the request of judges and prosecutors. The Board has not granted even one commutation based on mercy or rehabilitation. The Board does not even meet. Members vote by fax, phone or letter. A defendant never even gets an opportunity to plead his or her case with them personally. As in Karla's case, not one person on the 18-person board voted for clemency in any of the 16 death row appeals decided in 1997.
Nationwide, clemency is as rare. Only one execution was stopped on humanitarian grounds in 1997; 74 people were executed. In 1996, three prisoners found mercy while 45 people were executed. In 1995, none of the 56 people executed found grace from clemency authorities.
U.S. Supreme Court
In its 1993 decision, Herrera v. Collins, the U.S. Supreme Court held, to quote Chief Justice William Rehnquist, "Executive clemency has provided the 'fail safe' in our criminal justice system." Defendant Herrera had presented the Court with compelling evidence of his innocence. The Court found that executing a person who could show actual innocence was not necessarily unconstitutional and refused to stop his execution. His fate was deferred to the Texas pardon board. Texas' clemency "fail safe" failed to save Herrera's life. Justice Harry Blackmun observed in his stinging dissent: "If the exercise of a legal right turns on 'an act of grace,' then we no longer live under a government of laws."
The Tucker case painfully demonstrates how clemency decisions have become as politicized as the death penalty itself. Governors and the pardon boards they appoint are reluctant to stop any execution, for fear of being called soft on crime come election day. Undoubtedly, Governor Bush's potential Presidential bid in 2000 affected his decision to let Tucker die.
In Woodard v. Ohio, a case decided on March 25, the U.S. Supreme Court did find that "some minimal procedural safeguards apply to clemency proceedings." But it set a low threshold. Justice Sandra Day O'Connor wrote for the majority of five justices:
"Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process."
In a separate opinion, Justice John Paul Stevens challenged Chief Justice Rehnquist's minority opinion, joined by three other justices, which concluded that constitutional guarantees of due process never apply to clemency proceedings. "Under such reasoning," Justice Stevens charged, "even procedures infected by bribery, personal or political animosity, or the deliberate fabrication of false evidence would be constitutionally acceptable."
All told, the Court has expressed its comfort with executive clemency being "a matter of grace." In today's political climate, grace remains scarce.
The U.N. Commission on Human Rights released a report on April 3 about the U.S. death penalty that concludes that the death sentences are applied unfairly.* The document urges the federal government to halt all executions while it brings the states into compliance with international standards and law.
Bacre Waly Ndiaye, a lawyer and human rights expert from Senegal, prepared the report. He was appointed by the Commission to investigate extrajudicial, summary and arbitrary executions worldwide. He led a delegation to the U.S. last fall and based his report on meetings with federal and state officials and visits to death rows. His report concluded that "race, ethnic origin and economic status appear to be key determinants of who will, and who will not, receive a death sentence." He found that the "lack of adequate counsel and legal representation for many capital defendants is disturbing."
Waly Ndiaye took special issue with the death penalty's use against juveniles, the mentally retarded and mentally ill. He noted that while the U.S. has not "executed any juvenile offenders while still under 18, it is one of the few countries, together with the Islamic Republic of Iran, Pakistan, Saudi Arabia and Yemen, to execute persons who were under 18 years of age at the time they committed the crime." Additionally, the report rightly points out that 28 of the 38 U.S. states with the death penalty allow the execution of the mentally retarded. Meanwhile, standards nationwide remain dangerously low for determining a defendant's sanity.
Concerns were also raised about "the current approach to victim's rights," noting that "while victims are entitled to respect and compassion, access to justice and prompt redress, these rights should not be implemented at the expense of those of the accused. Courts should not become a forum for retaliation." Waly Ndiaye rejected the arguments raised by U.S. officials that the U.S. public supports the death penalty:
"In many countries, mob killings and lynchings enjoy public support as a way to deal with violent crime and are often portrayed as 'popular justice.' Yet they are not acceptable in any civilized society."
The U.N.'s investigation and report has sparked harsh criticism from U.S. conservatives. Senate Foreign Relations Committee Chair Jesse Helms (R-NC) called Waly Ndiaye's mission to the U.S. last fall "an absurd U.N. charade." Members of the Cabinet and the U.S. Supreme Court refused to meet with him. So did many state officials in New York as well as California, Florida and Texas - the three states with the largest death row populations. Outside the State Department, those officials who did meet with Waly Ndiaye displayed little or no knowledge of U.S. obligations under international law.
U.S. delegate to the U.N. Bill Richardson downplayed the report's significance, saying it will simply "collect a lot of dust." Let's prove him wrong! Spread the word about the report. Access the report at www.unhchr.ch/html/menu4/chrrep/98chr68a3.htm. If you are not on-line, contact Equal Justice USA for a copy.
*The resolution was introduced to the Human Rights Commission by Italy and co-sponsored by 63 other nations - 18 more than those endorsing a similar resolution passed last year. A majority of the Commission's 53 rotating member states voted for the moratorium:
Votes in favor (26): Argentina, Austria, Belarus, Brazil, Canada, Cape Verde, Chile, Congo, Czech Republic, Denmark, Equador, France, Germany, Ireland, Italy, Luxembourg, Mexico, Nepal, Peru, Poland, Russia, South Africa, Ukraine, United Kingdom, Uruguay, Venezuela.
Votes against (13): Bangladesh, Buthan, Botswana, China, Democratic Republic of Congo, Indonesia, Japan, Malaysia, Pakistan, South Korea, Rwanda, Sudan, United States of America.
Abstentions (12): Cuba, El Salvador, Guatemala, Guinea, India, Madagascar, Morocco, Philippines, Senegal, Sri Lanka, Tunisia, Uganda.
Securely nestled within the choice ammunition of the capital punishment proponents is the seductive argument that without state-sanctioned murder, violent crime would surge exponentially. Society must kill the killers, such reasoning goes, to eliminate the likelihood of future killing (no hypocrisy here). On face value, this may seem logical. If potential murderers knew in advance that the iron fists of law and order can pulverize offenders, they'd think twice before killing. Alas, simple logic is not always true.
Consider the facts. Since the U.S. Supreme Court reinstated capital punishment in 1976, our nation has placed more and more people on death row. The number of executions each year is increasing dramatically. Yet, according to the FBI's Uniform Crime Report, the U.S. murder rate has remained virtually steady. The Bureau of Justice Statistics reports that in 1996, the South - responsible for 81% of U.S. executions since 1976 - had the highest murder rate of any region in the country. Nine southern states had murder rates significantly higher than the Northeast's 1996 rate of 5.4 per 100,000 people. Less than 1% of U.S. executions occur in the Northeast.
In 1994, the average murder rate of death penalty states was 8 per 100,000. The average murder rate in non-death penalty states was nearly half that figure - just over 4 per 100,000. Comparing neighboring death penalty and non-death penalty states demonstrates the same. For instance, Iowa's 1995 murder rate was under 2 per 100,000, while next door in Missouri, it registered over 8 per 100,000. What is the difference between the two? You guessed it - Missouri executes, Iowa does not.
Ponder also the story of Robert Smith, who was killed by the state of Indiana in late January. His crime was the murder of fellow inmate Michael Wedmore. After firing his court-appointed lawyers and receiving the prosecutor's promise of a death sentence, Smith pled guilty as charged. Prior to his execution, Smith refused the district attorney's offer of a 50-year sentence. He clearly wanted to end his life. Death, he had decided, was better than the years of solitary confinement he had endured in prison prior to the murder. Indeed, his reason for killing Wedmore was that he wanted to die himself. Were there no death penalty in Indiana, Michael Wedmore might live today.
So much for deterrence.
The Moratorium Now! campaign seeks 2,000 churches, city councils, civic groups and other institutions and organizations to endorse the call for a moratorium on executions by 2001 - the beginning of the next millennium. The count is on: 176 groups have already joined the call for a moratorium.
Your help is needed to reach out to local groups throughout the U.S. Organize a drive for moratorium resolutions among groups in your state or region. Don't limit your outreach to groups you know oppose the death penalty. Send your stories and organizing contacts to be published in our next newsletter!
Pennsylvania
Pennsylvania Abolitionists United Against the Death Penalty is coordinating their Campaign for a Moratorium, focused on halting all capital prosecutions and executions in Philadelphia. Well over half of those on death row in the state were sentenced in Philadelphia. Nationwide, Philadelphia County ranks third in the number of death sentences handed down - just behind Los Angeles County, CA, and Harris County, TX, which includes Houston. Deemed the "deadliest D.A." by the New York Times Magazine, Philadelphia D.A. Lynne Abraham pursues death sentences in 85% of all homicide cases. Not surprisingly, the vast majority of Philadelphia's and Pennsylvania's death row prisoners are African-American. Virtually all are poor.
PA Abolitionists has developed a comprehensive organizing strategy for Philadelphia. Their goal is to convince 214 local groups to pass moratorium resolutions - one for every person currently on death row in the state. At the same time, they seek 10,000 citizens to sign their moratorium petition. Once these resolutions and petitions are in hand, they will introduce their moratorium resolution to the Philadelphia City Council.
PA Abolitionists is also organizing the Caravan of Conscience: End Executions in Pennsylvania, from May 26 to June 1, which will include local actions around the state.
The Capital Area Chapter of the Pennsylvania Coalition to Abolish the Death Penalty is also recruiting groups to endorse the call for a moratorium on executions. They are organizing a moratorium rally on May 6 at noon at the Capitol Rotunda in Harrisburg.
Illinois
Nine death row prisoners in Illinois have been released because of innocence since the state reinstated the death penalty in 1977. Amnesty International's Midwest Regional Office is coordinating the Illinois Death Penalty Moratorium Campaign. Nearly 5,000 people have already signed moratorium petitions. Local organizing committees are forming around the state, including Rockford, Evanston, Kankakee and Springfield. Former death row prisoners and murder victims' family members are available to speak at local events. A National Conference on Wrongful Convictions and the Death Penalty is being held at Northwestern University, November 13-15, which will feature many of the 70 innocent people released from death rows across the country since 1976.
A moratorium resolution was passed by the Human Services Committee of the Illinois House of Representatives last November. The resolution has support from Democratic leaders in the House but is not expected to come up for a floor vote until after November's election. Meanwhile, the coalition is organizing a campaign of letters to legislators and gubernatorial candidates.
Kentucky's death row screams of racism: every prisoner was convicted of crimes involving one or more white victims. In late March, the state became the first U.S. jurisdiction to seek legislative remedy for racial bias in death sentencing. The legislature overwhelmingly passed a racial justice bill that allows capital defendants to use statistical evidence of racial discrimination to show that race influenced the decision to seek the death penalty. If the judge finds race to be a factor, the death penalty will be barred. The bill became law on April 2.
Years of research demonstrates that, throughout the U.S., cases involving white victims and black defendants are most likely to result in death sentences. Yet, state and national legislators have been unwilling to address such racial bias. Maryland came close in 1995, when a racial justice bill passed the state Senate. But it was withdrawn before it reached the House, after Governor Paris Glendening promised to appoint a taskforce to study racial bias in Maryland's death penalty. That taskforce recommended in 1996 that the state commission a fuller study, providing the necessary staffing and subpoena power. Such a study has yet to be undertaken.
Over the past decade, Congress has considered four versions of a death penalty racial justice bill. None has passed. Thanks largely to the Congressional Black Caucus, the House passed a weak racial justice bill in 1994, but the measure never reached the Senate. Instead, a final crime bill signed by President Clinton expanded the federal death penalty from two to 600 crimes and established procedures for resuming federal executions.
Kentucky's Racial Justice Act passed, thanks to a hardworking state coalition, including the Kentucky Council of Churches and the Catholic Conference of Kentucky, as well as state chapters of Murder Victims Families for Reconciliation, the ACLU and Amnesty International.
SAN RAFAEL, Calif., April 11 - No one denies that Horace Kelly is deeply disturbed.
He often sits in his own waste in his cell on California's death row and goes long stretches without combing his hair or bathing.
The guards often wear masks to clean his cell because of the stench. His I.Q. hovers near mental retardation and he mumbles, speaking in sentence fragments and disconnected phases, when he talks at all. The other day he told his lawyer he was going to court because the judge had to decide whether he could join the Marines. To him, death row is a vocational school and as soon he gets his "certification," he can go home.
So now, this is the only real question about Mr. Kelly, 39: Is he mentally competent enough to be executed for fatally shooting two women and an 11-year-old boy in 1984?
The answer may come in the next week in the first proceeding of its kind in California since 1951. It is a special competency trial that began here last Monday, where a 12-member jury will decide whether Mr. Kelly has become too incompetent during his years on death row to be put to death.
Mr. Kelly was scheduled to die by lethal injection next Tuesday and for a couple of tense days, Judge William T. McGivern of Marin County Superior Court insisted that he had no power to stop the execution even if the trial was still going on. But on Thursday, Judge McGivern reversed himself and issued an order blocking the execution until the jury can reach a verdict. The jury has not been selected yet, even though the proceedings began on Monday.
"This case is as complex as anything we've seen in some time," said Dane R. Gillette, Senior Assistant Attorney General for California. "It's been so long since we've done this that almost every issue is new."
What is not new is the notion that executing the insane is wrong. It goes back centuries in common law and since 1986 it has been unconstitutional. But the mental competency threshold that an inmate must meet before being wheeled into the death chamber is so low that capital punishment experts can recall only three or four cases of an execution's being stopped because a hearing had determined the condemned had grown too incompetent.
"It's exceedingly rare," said Richard Dieter, director of the Death Penalty Information Center. "There are a lot of people with mental problems on death row, but this case seems to be a glaring example of serious competency questions."
A jury decides in California. Elsewhere, a judge decides, but the criteria for executions are essentially the same: If the inmate is aware of his pending execution and the reason for it, then he is deemed mentally competent, no matter how many voices tell him that he is God or that, like an Arkansas inmate named Rickey Ray Rector on the day of execution, he asks the guards to save his dessert for a snack before bedtime.
On at least two occasions over the last three years, California prison officials and psychiatrists have said they had doubts that Mr. Kelly could pass even that simple test.
Last month, three prison psychiatrists interviewed Mr. Kelly at San Quentin Prison, not far from this city north of San Francisco. Mr. Gillette, the state prosecutor, said one doctor had no doubt that Mr. Kelly was insane. A second doctor "was very certain Mr. Kelly was incompetent" and the third said "he probably was" incompetent.
Every time someone is scheduled to be executed in California, a team of prison psychiatrists is sent to evaluate the condemned inmate about a month before the date. They report their findings to the warden; and if the warden has any doubts about the inmate's sanity, a competency trial is held.
For most of the last 50 years, the process has been little more than a formality as 107 people have been executed in California since 1950 and only once, in 1951, were enough doubts raised to hold a mental competency trial. Then, a jury ruled 9-3 that an inmate was competent to be executed.
That was before Horace Kelly.
At birth, he was three months premature. His mother drank throughout her pregnancy and he had to spend the first eight weeks of his life in a hospital. At 3 1/2 years, his father scalded him with hot water, rammed his head into a wall and continued the abuse for years, according to his family. At 25, he murdered three people.
"I've probably interviewed 300 people on death row across the country, including Horace Kelly, and he's the most impaired by far," said Michael Radelet, an expert on the execution of the mentally ill and the chairman of the sociology department at the University of Florida. "There's no question about it. He's absolutely out of touch with reality."
The competency trial is not the only court battle Mr. Kelly's recently court-appointed lawyer, Richard B. Mazer, is waging on his behalf. Mr. Mazer and his colleagues are also fighting in Federal court for Mr. Kelly's right to file a writ of habeas corpus, a fundamental legal protection, asking for a review of his competence and the prosecutor's behavior in the original trial. But there are new restrictions and time limits on writs since President Clinton signed the Antiterrorism and Effective Death Penalty Act in 1996.
Mr. Kelly's previous lawyers failed to file the writ within the new time limit, largely because it was believed Mr. Kelly was too mentally incompetent to be executed - a mistake that could cost Mr. Kelly his life.
On Friday, Judge Terry Hatter of United States District Court in Los Angeles ordered Mr. Kelly's lawyers to refile motions to have his case federally reviewed. Also on Friday, the California Supreme Court told State Attorney General Dan Lungren to reply by April 30 to new appeals filed in that court by other lawyers for Mr. Kelly that challenge his convictions and death sentences.
In the meantime, Mr. Mazer said the state was trying to coach Mr. Kelly so he could answer enough questions to meet the competency threshold for execution. The lawyer said the guards were "training him like a pet."
Mr. Gillette, the state prosecutor, angrily denied that Mr. Kelly had been coached. A television was brought in to make his life more bearable, Mr. Gillette said.
If the jury decides Mr. Kelly is incompetent, he will be sent to a prison mental hospital for treatment. If his condition then improves sufficiently, he could then be executed.
"Treating him, just so he can be killed," Mr. Mazer said, "now that's really insane."
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