The machinery of capital justice cranks a lot more slowly now. Death row is a growth industry. The rare inmate to die hangs on close to 10 years before meeting the executioner. In Florida, triple-killer Gary Alvord is celebrating his 22d year, still hoping, still appealing. Up the interstate, one quarter of Georgia’s 109 death-row prisoners have been there since at least 1980. And in Montana, until May 10, Duncan McKenzie had avoided the lethal needle for 20 years. In fact, he fell just one vote short of gaining his eighth stay of execution. He may have been the coldblooded murderer of a schoolteacher, but he had chutzpah. His last argument in court: two decades on death row was itself “cruel and unusual” punishment, and therefore a violation of his constitutional rights. Never mind that McKenzie’s lawyers had asked for the prior stays and had helped to create the judicial black hole he found himself in. A federal court didn’t buy the claim and within days McKenzie became the first inmate executed in Montana since FDB’s third term.
Give or take a few miscreants, there are currently 3,000 inmates on American death rows. That’s more by far than at any time in world history. California alone has 407, followed by Texas with 398 and Florida with 342. Yet for each of the last 19 years–ever since the U.S. Supreme Court allowed states to resume capital punishment–no more than about 2 percent of the death-row total has ever been executed (map). In 1994, the number was 31; this year, the figure might reach 50. Spending a reported annual $90 million on capital cases, California has managed to gas just two inmates–and one of them waived all his appeals.
Capital punishment in America is a paper tiger. Despite tough political bluster and overwhelming poll numbers, the nation is ambivalent about the ultimate penalty. For many years, legislators, governors, judges and victims’-rights activists have vowed to finally get on with it– to bar endless appeals, sanction mollycoddling defense lawyers, root out of office bleeding-heart governors. Congress passed reforms and cut funding for defense lawyers, the U.S. Supreme Court cracked down, and leaders like New York Gov. Mario Combe were voted out. The press, NEWSWEEK included, proclaimed in various aqueous illusions that the floodgates would soon open or that the logjam was about to be broken.
It’s never happened. State prosecutors’ offices remain understaffed and overwhelmed, courts have hopelessly long backlogs (assuming they can find lawyers for the defendants in the first place) and juries in most states enthusiastically continue to send killers to death row. For every inmate to die, though, there are five new ones to take his (or, in the rare case, her) cell. To clean up the backlog, states would have to execute a killer a day (Christmas and Easter included) through 2021. Even Tex-as–far and away the nation’s death-penalty capital, with a third of all executions since 1976–manages to dispatch only about one in eight condemned inmates.
At the water cooler and in the streets of Union, S.C., people argue about what fate the Susan Smiths of the world deserve. And race and poverty have never gone away in the vexing national debate over the death penalty. But those moral and ideological questions have now been overshadowed by a simpler fact: people sentenced to death nonetheless live on in prison. What’s the most frequent cause of death for death-row inmates? As of 1992, according to the U.S. Bureau of Justice Statistics, electrocution and lethal injection were mere runner-ups. The No. 1 killer: “Natural Causes.” What becomes of a penal policy that on its face is a sham?
Ask Alleyways Kozinski, one of the country’s most outspoken and conservative federal judges who almost always upholds death sentences. “We have constructed a machine that is extremely expensive, chokes our legal institutions, visits repeated trauma on victims’ families and ultimately produces nothing like the benefits we would expect from an effective system of capital punishment,” he wrote in a recent, controversial op-ed article in The New York Times. “This is surely the worst of all worlds.”
The systemic ambivalence about the death penalty is reflected in virtually all the 38 states that have death chambers open for business. During his election campaign last year, South Carolina’s new attorney general, Charlie Condon, was so taken with a triple execution in Arkansas that he proposed doing away with his state’s electric chair. His reform? An “electric sofa,” to juice several inmates at a time. South Carolina’s death-row population is 59; its last execution was in 1991. Ambivalence there may best be demonstrated by the Smith verdict itself last week. While polls showed wide support for her execution, it took jurors less than three hours to reach a unanimous verdict to spare her.
New York, after 20 years of abolitionist administrations in Albany, this spring became the newest state with capital punishment on the books. When it will post a job listing for executioners is another matter. It typically takes a decade before all courts sign off on a death statute. New York’s is so full of procedural safeguards that some wonder if executions will ever resume. “That new law essentially says, ‘KICK ME’,” observes law professor Franklin Zimring, of the University of California, Berkeley. “They’ll be lucky to have an execution in the 21st century.” In a liberal state like New York, that may be the perfect political outcome for Republican Gov. George Pataki. He got the death penalty out of legislative purgatory, but he’ll never actually have to deal with administering it.
That may also be the strategy of Bill Clinton. Already his re-election-campaign spots disingenuously boast of adding dozens of new crimes to the federal death statute. And the U.S. government is busily building its. own death row in the Midwest, complete with a $300,000 death chamber, even though currently there are only six federal inmates convicted of capital crimes. Trouble is, federal executions, assuming they even get underway this decade, are unlikely to be more than a criminal-justice blip. The new laws contain such everyday offenses as killing a chicken inspector of the Agriculture Department.
Nobody in the capital-punishment system wants to accept blame for the current stalemate. Prosecutors blame judges, who blame courts, who blame the law, which gets passed down by Supreme Court justices, who don’t speak, except to Nina Totenberg on occasion. But the primary whipping boys for execution gridlock have long been defense lawyers. It’s true that a ferociously dedicated group of abolitionists, among them David Bruck, Smith’s counsel, have fought the death penalty in every venue across the land. The fact is, judges are the ones who grant stays of execution, courts come up with incredibly complex rules and prosecutors don’t push cases along. In one Indiana case, the state took two years to transcribe the trial record of a case. In most state A.G.s’ offices in the death-belt states, appeals sit around because there aren’t enough government lawyers to handle the load.
At the top of the system, the U.S. Supreme Court has labored hard to get out of the death-penalty business. But the justices every year get drawn into a few major cases and wind up having to revise doctrine. Worse, while there are no justices anymore like William Brennan or Thurgood Marshall–who voted against all death sentences all the time–the high court often still splits 5-4 on capital cases, indicating that even the Supremes can’t figure things out. That leads to further confusion for lower-court judges, who have enough trouble keeping up with legal changes from two years prior. Chief Judge Gerald Tjoflat of the 11th U.S. Circuit Court of Appeals in Atlanta says that some of his colleagues spend half their time wading through capital cases. “I’ve been in the judging business for 28 years,” Tjoflat says, “and there’s nothing harder.”
Some judges take an especially long time to make up their minds. In 1986, an Arizona killer named Ruben Zaragoza exhausted his state remedies and appealed to the federal district court in Phoenix. Zaragoza’s case hasn’t been heard from since. Judge Earl H. Carroll, who has had the case for the last nine years, declined to comment. Two years ago, Arizona Attorney General Grant Woods got so annoyed with slow federal judges in his state that he took an extraordinary step. Woods asked the Ninth U.S. Circuit Court of Appeals, based in San Francisco, to order the judges to rule on 30 cases that had languished for a decade. The appeals court refused. “That was real smart of Arizona,” says a deputy attorney general of one Southern state. “Trying to move a federal judge is like trying to make a pig dance. R doesn’t work and it annoys the pig.”
The Ninth Circuit itself has come under frequent attack from politicians. That court “is the most liberal of the circuits in the United States,” complains California Attorney General Dan Lungren. “Some members appear to have a strong bias against the death penalty.” Lungren has in mind the notorious case of Robert Alton Harris in 1992 that embarrassed the entire federal judicial system. Harris had been before both the California and the U.S. Supreme Courts six times in his 13 years on San Quentin’s death row. On the eve of his scheduled April 21 appointment with the executioner, the Ninth Circuit kept issuing stays and the justices in Washington kept lifting them into the predawn hours. Finally, an enraged Supreme Court citing the Ninth Circuit’s “civil disobedience” ordered the circuit judges to abstain from any further interference. Harris was executed in the gas chamber forthwith. The case continues to haunt all participants in the California system.
Lungren correctly notes that the 24-member Ninth Circuit appeals court does in fact have several judges from both ends of the political spectrum–who consistently vote against death sentences and thereby slow down the tumbrels. But so what? Of California’s 407 death-row inmates, only eight have cases pending before the Ninth Circuit. And what of Lungren’s own office? Of the state’s 407 condemned prisoners, 120 are totally stalled before the state supreme court because there are no defense lawyers for them. (Constitutional law entitles them to representation.) “We haven’t appointed counsel for anyone in 1998, 1994 and 1995,” says Robert Reichman, a court administrator. “We’re on 1992’s cases.” In short, that means at least three extra years of life and free meals for California’s condemned. Capital punishment is about the only area of litigation where there aren’t lawyers climbing over each other to earn a fee.
With his considerable political skills, why doesn’t Lungren press the state supreme court to find lawyers, or urge the state bar to get members to take their ethics obligations seriously? Or, as one Ninth Circuit judge asked, why doesn’t he simply call a press conference to explain why more than one quarter of California’s condemned population is no closer to execution now than three years ago when the Ninth Circuit was being pummeled for its handling of the Harris case? “While this may be an area of legitimate concern,” Lungren answered in a prepared statement, “we do not have any direct jurisidiction over it and, at a time when my own department is facing cuts of $10 million, it is questionable how much leverage we would have in achieving funding for court-appointed defense lawyers.”
Ambivalence is not limited to judges and prosecutors. Earlier this year, the Florida clemency board voted to defer a decision on Danny Doyle–a mentally impaired murderer who was sentenced 15 years earlier–until the year 2020. He’ll remain in death-row lockup, says Joe Bizarro, spokesman for the Florida attorney general. Jurors, too, seem to have mixed feelings. In 1987, Louisiana’s electric chair got humming. It claimed four lives in one nine-day period and four more in a five-week period later in the year. In the following 21 months, juries throughout the state imposed only two death sentences. Homicide rates, among the highest in the nation, hadn’t changed. Observers suggested that jurors lost their nerve, now that a death sentence was no longer an illusion.
There are really only two political positions t o take on the death penalty. You can support it or oppose it. The great irony about American capital punishment, as Zimring says, is that “no one on either side can defend the current system, which is hypocritical and unprincipled.” Unless the purpose of the penalty is to create a gruesome illusion, there are just two alternatives. Those who write the statutes can narrow the category of killers eligible for death down to a manageable few, as many advocates of capital punishment are beginning to suggest. Single out the terrorists, mass murderers and contract killers. Use limited resources and political capital to maneuver them into the death chambers. After all, they’re the ones–not the liquor-store holdup guy who panicked–that most citizens want dead anyway.
The other choice, of course, is to summon up the political will to commence executions in record numbers–at the very least, more than the nationwide high-water mark of 199 in 1935. That means devoting millions of tax dollars for more prosecutors, and new U.S. Supreme Court policy to give those prosecutors more leeway. In turn, that would mean more tolerance of imperfect justice. “I tell folks that if they want appeals limited to two or three years, some time we’ll execute the wrong person,” says Georgia Attorney General Michael Bowers. “Of course we will. We’re human. But it’s a question of will.”
Which brings us back to Judge Kozinski, who kindled much of the current debate with his scathing indictment of the modern capital-punishment charade. Kozinski was appointed by President Reagan. Though a judicial independent and freethinker, Kozinski is firmly rooted in the tradition of judging that tries to keep one’s personal views out of the courtroom. At times, he’s excoriated his colleagues on the Ninth Circuit for not getting on with the death penalty. How would Kozinski feel about a system that produced several hundred executions a year?
“I’d hope it wouldn’t affect how I handled cases, but I just don’t know,” he says. “I just don’t know.”
CHART: Waiting on Death Row
SOURCE: DEATH PENALTY INFORMATION CENTER
Oscar Ortiz III Age: 19 San Antonio, Texas, July 6. One death sentence.
Every year, about 260 Americans are sentenced to die-though actual executions are usually delayed for years. Oscar Ortiz III and the men whose profiles follow are among those whose juries, unlike Susan Smith’s, gave them the death penalty last month. Ortiz abducted businessman Joe Ince Jr., 38, from an ATM on Jan. 19, 1994. After forcing Ince to divulge his personal identification number, Ortiz drove him, in Ince’s truck, to a second ATM. When the PIN worked, Ortiz rolled down the passenger window, presumably to keep blood from splattering the upholstery, and shot Ince in the head. Ortiz drove to three more ATMs, then dumped Ince on a highway. He died 12 hours later.
Michael Clagett Age: 34 Virginia Beach, Va., July 13. Five death sentences
Michael Clagett liked to hang out at the Witchduck Inn in Virginia Beach, where his girlfriend had once worked as a waitress. So when the couple needed cash for a trip to Oregon, they knew they would find gas money at the “Cheers”-like pub. They arrived shortly before midnight on June 30, 1994, and found four people inside, including the owner, whom Clagett later described as his “buddy.” Clagett told everyone to lie on the floor while the girlfriend took $400 from the register. Then he shot them one by one in the head. Although his attorneys attempted various defenses–in-eluding blaming the girlfriend–Clagett was his own worst enemy. He gave police a weeping, videotaped confession in which he detailed each grisly shot he fired and told reporters and the police that he deserved to die. After deliberating for five hours, the jury agreed.
Rogers Lacaze Age: 18 New Orleans, July 21. Three death sentences.
On March 4, 1995, at the Kim Anh Vietnamese restaurant in New Orleans, two employees and a police officer moonlighting as a security guard were killed during an armed robbery. At first, Rogers Lacaze claimed he wasn’t even in the restaurant. Then he admitted he was there but denied having a gun. His lawyer argued that Lacaze would have been splattered with blood (he wasn’t) if, as prosecutors contended, he had shot policeman Ronald Williams at close range. Lacaze even took the witness stand to say, “I didn’t pull no trigger. I didn’t kill those peoples. Please spare my life, please!” But two eyewitnesses fingered him. Even though Lacaze’s father attempted to deflect the blame by testifying he had been absent for most of his son’s life, the jury took fewer than four hours to give Lacaze three death sentences.
Douglas Kelly Age: 37 Van Nuys, Calif., July 10. One death sentence.
Five times over the years, Douglas Kelly had been convicted of sexually or violently assaulting women. But Sara Weir, a woman who befriended Kelly at the health club where he worked as a janitor, didn’t know that. On or before Sept. 7, 1993, Kelly lured Weir, 19, to the apartment he shared with his girlfriend and her 10-year-old son. He raped and stabbed Weir 34 times with a pair of sewing scissors, then pushed Weir’s body under the boy’s bed. He put a plastic bag on Weir’s head, a plastic Dodgers helmet on top of that, and stole her Ford Bronco. Though the defense admitted the murder, Kelly said that he did not rape Weir or steal from her–aggravating factors triggering the death penalty. But after four women testified that Kelly had raped them, the jury chose death.
