Death be not Proud

Death Be Not Proud

An attorney who defends death-row inmates describes how the death penalty really works, or doesn't, in America.

Iron Mike

I am a lawyer who represents poor people who have been sentenced to death.People who are on death row, by and large, are there because they participated in a horrific crime. I understand that fact and do not ever want to lose sight of it. Nevertheless, I oppose capital punishment under all circumstances.

I come from a Jewish family distrustful of a government with the power, by legal means, to kill people. Thus, from a moral perspective, I do not believe the government should have the right to kill. From an empirical perspective, from my review of countless studies and discussions with scholars, I do not believe capital punishment works in practice. And, finally, I come from a perspective of advocacy on behalf of my clients.

The recent history of U.S. capital punishment is illuminating. In 1967 an unofficial moratorium on executions in the United States began. In 1966, an opinion poll indicated that not only did a majority of U.S. citizens oppose capital punishment, but more people opposed capital punishment than opposed United States involvement in Vietnam. It is shocking to know that was the mood of the country in 1966, when currently over 75 percent of the population, when asked a simple question, “Do you believe in capital punishment?” would say, “Yes.”

In 1967, we saw grand-scale challenges to capital punishment that culminated in 1972 with the U.S. Supreme Court decision in Furman v. Georgia. The 5-4 decision produced nine separate opinions, and an immediate backlash from states whose capital punishment statutes the decision had invalidated.

Politicians in states that had not had an execution since 1967 suddenly thought that the U.S. Supreme Court had taken away their right to kill people, when they had not been killing people anyhow. So beginning in 1972, politicians in thirty-five states went to their legislatures and said, “We need capital punishment.” These politicians also knew that capital punishment could be a very political issue, and they were right. Politicians have been using the issue time and time again to gain reelection.

The states’ reaction was swift and intense. Every state that had capital punishment in existence prior to the 1972 Supreme Court decision reenacted capital punishment statutes. By 1976, when the challenges to the new statutes came about, the political message came through loud and clear: the public wanted capital punishment, and they wanted it at all costs. So in 1976, the U.S. Supreme Court justices reversed themselves, ruling that executions are an acceptable form of punishment.

Twenty years have passed since Gary Gilmore’s execution in Utah, the first in the United States after the Supreme Court reinstated capital punishment. In that time, we have learned a lot about how capital punishment is applied in this country.

First, executions are confined to the poor. Clinton Duffy, who was the warden at San Quentin State Prison, where lethal-gas executions took place, once said that capital punishment is a “privilege of the poor.” The people with the means to produce a legal team, be it a dream team, be it whoever, do not end up on death row.

Second, executions are the result of racial discrimination. Study after study has shown that people who are not white, people of color, are sentenced to death in far greater percentages than people who are Caucasian. And if you yourself are convicted of killing an African American, the chance that you, regardless of your own race, will be sentenced to death is microscopic. By and large, the people we send to death rows around this country are people who have killed white people.

Third, executions do not make us any safer. The states with the highest execution rates have the highest murder rates, and the states with the lowest homicide rates do not have capital punishment at all.

And fourth, capital punishment is not a panacea for the loss of a loved one. For years, politicians have been telling victims’ families in murder cases that “you will finally have closure on your loss once you witness the execution.” But it is a lie. If anything, capital punishment worsens the type and intensity of loss and grief that victims’ families experience. A murder case that ends with a sentence of life in prison without parole allows closure at the time of sentencing. It is over. But the exact opposite happens when someone is sentenced to death: not only is the process much longer at the trial stage, but the appeals process, so necessary in capital cases, can take years. Execution dates are set, then postponed, and every time, the victim’s family relives the loss.

I am sure you have heard those arguments and many others, including the fact that innocent people have and will continue to be executed, and the fact that we are one of the only countries in the world to allow executions of juveniles and the mentally retarded.

What I can probably add to this debate is my experience on how executions distort the legal process.

When the U.S. Supreme Court ruled in 1976 that executions do not violate the Eighth Amendment’s protection from cruel and unusual punishment, the Court promised us something called “super” due process in capital cases. At the very least, that meant if defense lawyers were unsatisfied with the result from a lower court, we could petition the U.S. Supreme Court. But as a lawyer for death-row inmates, I have learned that a case has to be “interesting” to be heard by the U.S. Supreme Court. It does not take run-of-the-mill cases.

One industrious lawyer in the South, in a Texas case, came up with a fairly ingenious prospect by presenting the Court with a simple question, “Does the Constitution permit the execution of innocent people?” Sure enough, in the 1992 case of Herrera v. Collins, that question was sufficient to compel four justices to grant certiorari, that is, a review of the case. The problem was, you need five justices to grant a stay of execution. So although the U.S. Supreme Court decided to hear the claim, the simple one to which we thought we all knew the answer, there were not five justices to grant a stay of execution. Leonel Herrera was facing imminent execution even though the U.S. Supreme Court decided to hear the case involving his own possible innocence.

Eventually, a Texas court granted a stay of execution. The case proceeded in the U.S. Supreme Court, which, believe it or not, decided that the Eighth Amendment did not prohibit Mr. Herrera’s execution, despite evidence of his own innocence. In the Court’s view, claims of innocence, such as Mr. Herrera’s are a matter for the governor to decide.

Leonel Herrera was executed less than four months after that Supreme Court decision. Perhaps he was comforted by the fact that Texas was notunconstitutionally executing him.

I do not mean to single out the U.S. Supreme Court. In my own state of California, the state Supreme Court decided a case that still has my head spinning. A defendant, Gonzalo Marquez, told the court he could produce seventeen witnesses to testify that he was in El Pilon, Mexico, at the time of the crime. The problem was, his trial lawyer did not interview even a single person in El Pilon as to his potential alibi defense; instead, the trial lawyer and his investigator spent a week in a luxury hotel in Mexico City. Mr. Marquez was thus convicted and sentenced to death.

The California Supreme Court, reviewing the case on appeal, had some – but not much, trouble with this. The court decided that although the evidence was sufficient to affirm the conviction, the seventeen alibi witnesses made them a little doubtful as to whether this person should be executed. So the court sent the case back for a retrial, but not on whether or not this person was actuallyinnocent of the crime, but whether or not the person deserved life in prison or death. Perhaps that was some victory for Mr. Marquez, who got life in prison.

I represented Robert Harris, the first person to be executed in California in twenty-five years. You probably know him as Robert Alton Harris, because we always know death-row inmates’ middle names. It is part of the process of dehumanizing people by giving them their full names, rather than the names they actually use.


A lone capital punishment activist holds vigil at San Quentin (California) State Prison prior to the 1992 execution of Robert Alton Harris.

Robert Harris was convicted in the 1978 San Diego killing of two teen-age boys, a horrific crime. In 1990, he avoided his execution date with the claim that his trial lawyer did not perform the kind of job that any lawyer would, namely, take a history of the client. If a history had been taken, they would have discovered the fact that Robert Harris was born into this world by literally being kicked out of his father. His mother was six months pregnant, and Robert Harris’s father, in one of his drunken binges, beat his wife within an inch of her life, causing the premature birth of his son. He was born with severe brain damage that was never detected by the trial lawyer or by the expert he employed. Robert Harris also suffered from fetal alcohol syndrome, which is a severe, permanent mental disability affecting a person’s ability to understand and react to situations.

Robert Harris’s first trial lawyers never uncovered these details about his childhood. For example, they did not learn that Robert Harris’s father would routinely take a hand gun and put it on the kitchen table and make the children sit at the table as he spun it. He told the children he would shoot whomever the gun pointed at when it stopped.

Even if Robert Harris’s miserable childhood did not explain why he committed the crime, it was still information a jury constitutionally must consider in determining whether or not a defendant deserves the ultimate penalty of death.

None of these issues were ever resolved on the merits, however. By the time I got involved in the case in 1990, the courts said, “We don’t want to hear the merits of your claim because you waited too long to bring these to us.” Of course, the merits of the claim took so long because early in the appeals process, the district court had refused to provide funds for a proper investigation. Eventually, the ACLU provided the money, but it was all too late for Robert Harris, because he was on the fast track to be executed. California needed to join the ranks of Florida, Texas, Georgia, and the rest of the South that had already resumed executions in the United States.

So in 1992, after all this litigation was finished about whether or not Robert Harris deserved to die, there was one claim remaining to be litigated: Howshould Robert Harris die? Two weeks prior to his execution date, Arizona executed its first person in its gas chamber in almost thirty years. The execution, by hydrogen cyanide gas, involved horrible pain. As the gas is breathed in, the person’s cells cease to use oxygen . The feeling is as if I took my hands and put them around your neck and very slowly strangled you to death. In fact, “modern” gas chambers operate in much the same way as the gas chambers of Nazi concentration camps.

So I made one simple request of the court: Please stay Robert Harris’s execution until California proves lethal-gas executions are constitutional or until California adopts a new type of execution. The district court, confronted with undisputed evidence that lethal-gas executions involve at least five to ten minutes of conscious, intense pain, granted the stay, and at 10 p.m. before a 12:01 a.m. execution, the Ninth Circuit Court of Appeals upheld the district court’s stay of execution.

All the while, however, the state attorney general’s office was faxing papers to the U.S. Supreme Court, trying to persuade the Court to vacate the stay. At approximately 3 a.m., the Supreme Court called me to say the court had vacated the stay of execution. The execution would go forward. However, I did not learn the basis for the decision; I believed it was on a procedural question at the appeals-court level, so I went back to the Ninth Circuit and asked the judge, whom I woke up, to issue a stay of execution to permit me to comply with the procedural question.

In the meantime, California was rushing toward an execution. They had taken Robert Harris out of his holding cell and placed him in the gas chamber as quickly as they could. When the circuit judge called San Quentin State Prison, they were strapping Robert Harris into the gas chamber. Evidently, there was confusion as to whether this judge, Harry Pregerson, was really a judge. The story recounted to me is that the deputy attorney general of California answered the phone and said, “Harry who?” When the judge replied, “Judge Harry Pregerson of the Ninth Circuit,” the attorney general said, “How do I know it’s you?” a question that ignored the fact that only judges have the inside phone number. Judge Pregerson’s comment was, “I will fax you my American Express card, but if you kill Robert Harris, you will be facing some serious charges.”

The state of California was not going to be outdone. For ten minutes, they left Robert Harris in the gas chamber, strapped in the chair, not knowing what was going on. All the while, the state sought the U.S. Supreme Court’s approval for an execution right then and there.

Robert Harris remained strapped in, waiting for the sodium cyanide pellets to drop into the sulfuric acid to produce the hydrogen cyanide gas. Robert Harris thought the machine was broken. He kept saying, “Pull it! Pull it!” because he had made peace with himself and was ready to die. But the California attorney general’s office, with infinite wisdom, thought it would be better to let him sit there while they got on the phone to the U.S. Supreme Court and tried to vacate the stay. The Supreme Court told the state of California that it did not do its business over the phone. That prompted the state finally to take Robert Harris out of the gas chamber and back to the holding cell.

The state filed papers, the defense filed papers, and three hours later the U.S. Supreme Court came back with what I think is a remarkable order. It said, “The stay of the Ninth Circuit Court of Appeals is vacated. No lower federal court is empowered to issue a stay of execution without this court’s authority.”

Every federal judge with whom I have spoken about the order is outraged by that order. Federal judges take an oath to uphold the Constitution. Although it is one thing for the U.S. Supreme Court to vacate a stay of execution because it does not believe one should have been issued, it is quite another when the U.S. Supreme Court’s frustration with us, capital defense lawyers, enrages it to such a degree that it would tell judges that they cannot follow their own oath of office.

Unfortunately, distortion of the legal process is inherent when we talk about life-and-death decisions. Lawyers are not going to stop representing their clients. States are not going to stop trying to kill people. Thus, you are always going to have a conflict that comes down to the last minute in each of these cases. The entire process is painful for the condemned person, it is painful for the victim’s family, and it is exorbitantly costly in human and financial terms.

The last minute for Robert Harris was at 6:21 a.m. on April 21, 1992. At that time, the state of California, employing what it euphemistically calls “Procedure 769,” executed Mr. Harris in the gas chamber of San Quentin State Prison.