Death in Pennsylvania:

James V. Bennett[1] Revisited

by

Roger L. Thomas[2]

April 3, 2001[3]

Preface

James V. Bennett was Director of the Federal Bureau of Prisons for 30 years. His experience made him object to the death penalty:

(1) There is something inherently disgusting about the death penalty which leads to excesses;

(2) The death penalty is used too frequently, and for the wrong reasons;

(3) The jury is not fully informed when contemplating the death penalty;

(4) The laws are inconsistent;

(5) There was a successful moratorium on executions from 1968 to 1979;

(6) Every nation in the modern world has abolished the death penalty except the United States and some of its member states;

(7) The penalty is appalling by its nature;

(8) The death penalty is not a deterrent to crime;

(9) The best deterrent to crime is education - including religious education, moral training, and character building.

Not even a year after Bennett published his concerns, there was an epidemic of prison riots, especially in New York and Florida.[4] These riots stimulated a complete inquiry by a Select Committee of the House of Representatives. The Committee's report was remarkably consistent with Bennett's recommendations.[5]

On June 29, 1972, while the House Select Committee was still conducting hearings, the Supreme Court rendered a one page, Per Curium, decision in Furman v Georgia.[6] This decision held that

“the imposition of the death sentence under (existing) statutes constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because under such statutes the juries had untrammeled discretion to impose or withhold the death penalty.”[7]

The decision struck down the laws of 41 states.[8] Each Justice wrote a separate opinion either in support or dissent from the holding. Every argument for, or against, capital punishment is found among their opinions. Their scholarly examinations of the very ideas Bennett raised serve as a starting point for any discussion of the subject.

Although there had been no executions in the United States since 1967, 38 states re-enacted death penalty statutes in accordance with Furman's guidelines.[9] Pennsylvania's statute is summarized here as an appendix.[10]

These new state statutes came to the Supreme Court on July 2, 1976 as Gregg v Georgia.[11] This time the Court held that capital punishment could be used for two principal social purposes:

a) retribution, and

b) the deterrence of capital crimes by prospective offenders.

Justice Powell wrote the Gregg opinion, and has since declared that the case was wrongly decided.

The states started executing people again in 1979,[12] and 679 people have died since then.[13] Pennsylvania resumed executions in 1995^.[14]

By 2000, serious questions had developed about how effective capital punishment is as a deterrent, and whether innocent people are being executed. Illinois had identified so many mistaken convictions that Governor George H. Ryan declared a moratorium until the entire issue could be re-evaluated.[15] After Governor Ryan called his moratorium, Pennsylvania’s Senate Judiciary Committee held hearings on the idea of a moratorium here.[16] The public response was tremendous. Reform bills were introduced in the Senate:

(1) SB 23 and 24 Session 2001 would eliminate capital punishment as a sentencing option.[17]

(2) SB 25 Session 2001 would require a moratorium on executions at least until the process could be studied.[18]

(3) SB 26 Session 2001 would eliminate the mentally retarded from execution.[19]

(4) SB 27 Session 2001 would eliminate juveniles from execution. [20]

(5) SB 28 and 29 Session 2001, the “Journey of Hope Bill” would allow the victim’s family to present their wishes regarding capital punishment at any stage during the process.[21]

(6) SB 589 Session 2001, the “DNA Rights Bill,” would allow DNA to be admitted into evidence, and would pay for the tests for indigent offenders.[22]

(7) SB 869 Session 2001 addresses the issue of incompetent counsel.[23]

(8) SB1510 Session 2000, the “Truth in Sentencing Bill,” would have had juries instructed that in Pennsylvania “life means life” with no possibility of parole.[24]

Methodist thought on the death penalty is well settled.[25]

"In the love of Christ, who came to save those who are lost and vulnerable, we urge the creation of genuinely new systems for the care and support of victims of crime and rehabilitation that will restore, preserve, and nurture the humanity of the imprisoned. For the same reason, we oppose capital punishment and urge its elimination from all criminal codes.”

Methodists applied these principles to Gregg v Georgia, in 1980, by adopting a specific resolution against Capital Punishment.[26] The resolution reflected Bennett's thinking. It challenged the effectiveness of capital punishment as a deterrent to crime, and specifically rejected the idea of "retribution."

The 2000 General Conference continued the policy, and specifically directed both United Methodists and their church "to work in collaboration with other ecumenical and abolitionist groups for the abolition of the death penalty."[27]

In as much as many have undertaken to compile these ideas, just as they were delivered to us by eyewitnesses and scholars, it seemed good to me also, having followed all things closely for some time past to write an orderly account so you might know the truth concerning the things of which you have been informed.

This booklet applies Bennett's reasoning to our current legislation. It devotes less than 1,000 words of United Methodist doctrine, existing scholarship, law and cases to each of his points. The recommendations are both conceptual and specific. We hope that the specific recommendations will be adopted at the Western Pennsylvania Annual Conference of the United Methodist Church, and then by the Pennsylvania legislature.

Roger Thomas

Recommendations

Overriding recommendations

There are three general recommendations.

First, we should "oppose capital punishment, and urge its elimination from (Pennsylvania's) criminal codes." To this end, we should support SB23, 24, and 25 Session 2001.

Second, we should support any legislation which would eliminate capital punishment in Pennsylvania.

Third, we should continue to declare our opposition to the death penalty because:

(1) There is something inherently disgusting about the death penalty which leads to excesses;

(2) The death penalty is used too frequently, and for the wrong reasons;

(3) The jury is not fully informed when contemplating the death penalty;

(4) The laws are inconsistent;

(5) There was a successful moratorium on executions from 1968 to 1979;

(6) Every nation in Western Civilization has abolished the death penalty except the United States and some of its member states;

(7) The penalty is appalling by its nature;

(8) The death penalty is not a deterrent to crime;

(9) The best deterrent to crime is education - including religious education, moral training, and character building.

Specific recommendations

At the legislative level, Pennsylvania should:

1) support SB25 Session 2001, and enact a moratorium on executions.

2) support SB25 Session 2001, and study whether race, class, and economics play a role in the way the death penalty is meted out.

3) support SB25 Session 2001, and study how Capital Defense Resource Centers work around the country.

At the executive level, Pennsylvania should:

4) stop signing death warrants until the SB25 studies have been completed.

At the trial court level, Pennsylvania should:

5) implement the ABA standards for competent representation in death penalty cases support SB 26 Session 2001, and prohibit the imposition of the death sentence on people who are mentally retarded

6) support SB27 Session 2001, and prohibit the imposition of the death sentence on juveniles.

7) support legislation like SB 869 Session 2001, and resume funding Capital Defense Resource Centers in an amount at least equal to that provided to the Attorney General's office.

8) support SB28 and 29 Session 2001, and respect the victims’ family’s objection to capital punishment.

9) support SB589 Session 2001, and allow the admission of DNA information, as either incriminating or exonerating evidence.

At the sentencing level, Pennsylvania should amend “42 CPSA 9711(c) Instructions to the Jury” to provide that before the jury retires to consider the sentencing verdict, the court should instruct the jury:

11) in keeping with SB1510 Session 2000 that, “the verdict must be a sentence of death if the jury unanimously finds ... one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be life imprisonment without possibility of parole in all other cases.”

12) in keeping with the 1994 Crime Control Act that “the jury determination may not involve consideration of race, color, religious beliefs, national origin, or sex of either the Defendant or the victim.”

At the appellate level, Pennsylvania should:

13) eliminate the statute of limitations on after-discovered, and forensic, evidence in capital cases.

14) adopt the Racially Discriminatory Capital Sentencing Act, and consider statistical evidence of racial discrimination in sentencing.

Excesses of Capital Punishment

Bennett objected that the death penalty is inherently disgusting and prone to excess.

"There is something inherently disgusting about the death penalty that leads to excesses. Small wonder that prison wardens, (like) John Ryan of Milan, Lewis Lawes of Sing Sing, James Johnston of Alcatraz, and Clinton Duffy of San Quentin were in the forefront of those who wanted to abolish capital punishment."

Senator Helfrick’s[28] SB25 Session 2001 would suspend executions in Pennsylvania for two years while the law and administration of our death penalty statute is re-examined. The focus of the study will be whether:

(1) the defendants who are sentenced to death are in fact guilty of first degree murder;

(2) the defendants in death penalty cases are provided adequate and experienced counsel and adequate resources for the defense of their cases at the trial, appellate and post-conviction stages;

(3) race does not play an impermissible role in determining which defendants are sentenced to death; and

(4) death penalty cases are handled similarly by all district attorneys throughout the Commonwealth.

Senator Helfrick’s Bill brings the excesses of the death penalty directly to the fore.[29]

Guilt or Innocence:

The first excess is wrongful conviction. 25 people were sentenced to death in Illinois, between 1977 and 1999, under the current process. It fell largely on Professor David Protess and Northwestern University's journalism students to prove that 13 of these people were innocent.[30] Their efforts were successful because they investigated as journalists.[31] They were not limited to the legal paradigm. Their work was critical in persuading Governor Ryan to declare a moratorium there.[32]

The Chief Justice of the Illinois Supreme Court supports the moratorium. "As long as we are putting people to death, it is inevitable that some of them will be innocent.”[33] "If you convict an innocent person, the guilty person's on the street. Somebody who did it is on the street and may strike again. Our responsibility, on the public side, is to make sure that only the guilty are convicted. Only the guilty get executed.”[34]

In July 1998 there were 217 people on Pennsylvania's death row. By October 1999 the number was up to 221 men and 4 women. On February 27, 2000 it was 230.[35] On April 16, 2001 it was 237 men and 4 women. We are the nation's fourth-largest death row. Only California, Texas and Florida have more.[36] Many of these people continue to protest their innocence.[37]

Modern forensic techniques, such as those used through Yale University's Benjamin Cardozo Law School, have determined that 80% of the inmates who protest their innocence actually are innocent of the crime of which they are convicted.[38] As mentioned, Northwestern University's journalism students cleared 13 of the 25 people scheduled for execution in Illinois since the Gregg decision.[39] All this was done before DNA testing was adequately developed.

As early as October 1993, the US House Judiciary Committee on Civil and Constitutional Rights determined that 77 Americans had been released from death row with evidence of their innocence. Two were women. That study only looked back as far as 1970. The number continues to grow. Pennsylvania’s William Nieves was number 89.[40] As of April 14, 2001 there were 100.[41] One death row inmate is freed from execution for every seven inmates executed.[42]

23 people have been executed since 1900 who the government knew were innocent.[43] Timothy Evans, the last person executed in Britain, was found innocent, posthumously.[44] Justice Harry Blackman warned that “The execution of a person who can show that he is innocent comes perilously close to simple murder.”[45]

Humans and courts are fallible. When they make a mistake regarding liberty or property at least part of the loss can be restored. Execution is final. The damage cannot be restored.

Our recommendation here is that the Pennsylvania legislature should enact a moratorium on all executions.

Legal Incompetence:

The next excess is legal incompetence. In 1997 the American Bar Association concluded that the administration of the death penalty was a "haphazard maze of unfair practices," and called for a national moratorium.[46] The Pennsylvania Bar Association joined in this appeal.[47] The lawyers are specifically concerned about the extent of legal incompetence involved in death penalty cases. 90% of the people accused of capital crimes cannot afford their own attorney.[48] They are provided with court appointed lawyers who are usually just getting started.[49] Since the clients tend to be paupers, the lawyers work almost "pro bono". In one instance the defense attorney was paid $800 for the entire trial.[50]

An embarrassing number of lawyers whose clients are sentenced to death are ultimately driven from the bar for incompetence.[51] In Virginia, for example, lawyers who have represented death row inmates are six times more likely to be disciplined by the Bar Association or the Supreme Court.[52] The Chief Justice of the Illinois Supreme Court complains that some 80% of these lawyers were ultimately disbarred or suspended.[53] Gary Graham's defense attorney "slept through the case and there was never cross-examination of other witnesses. (Graham) was killed on the strength of one witness."[54] In Philadelphia, William Nieves' lawyer prevented him from taking the witness stand for fear that irrelevant information might come out.[55]

The American Bar Association Guidelines for Appointment and Performance of Counsel in Death Penalty Cases sets out certain standards for an attorney to competently represent a capital defendant. They must have hands-on experience with both the trial and sentencing phases of the proceedings. They must have ready access to assisting attorneys, support staff, investigators and independent experts to deal with everything from ballistics evidence to the mental health of the defendant. They should be selected by independent appointing entities and not by judges. No state has met the Bar's standards.[56]

US Supreme Court Justice Ruth Bader Ginsberg complained about legal incompetence in capital cases, saying “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of execution stay applications in which the defendant was well represented at trial.”[57] "Representation in capital cases must be Constitutionally sufficient. It simply isn't.”[58]

In Britain, only Barristers, who have years of experience and an established standing in the profession, can defend capital cases.[59] This is one example where the British system is superior to ours.

Our recommendation here is that Pennsylvania should implement the ABA standards for competent representation in both the trial phase and the appellate phase of death penalty cases.

That is not the end of it. Those lawyers who are competent are not provided with the staff, time, or funds to prepare an adequate defense. The trial phase of a capital case often entails three years work and $100,000 in costs.[60]

Pennsylvania's attorney general's office has an entire unit dedicated to helping state and local prosecutors win death penalty cases. Defense lawyers are supposed to get similar support from "Capital Defense Resource Centers." Pennsylvania stopped funding such Centers in 1993,[61] and the Federal government stopped in 1995.[62] We are the only state that does not provide such Centers for its accused.[63] Philadelphia County has its own full time Federal Defender's Office with a unit dedicated exclusively to capital crimes. Not one person represented by this team has been sentenced to death in the last 10 years.[64]

Pennsylvania took a step toward resolving this problem in 2000 when Senator Greenleaf[65] recommended $500,000 for the Capital Defense Resource Centers. This would match the sum provided to the Attorney General's Office.[66]

Our recommendation here is that Pennsylvania resume funding Capital Defense Resource Centers in an amount at least equal to that provided to the Attorney General's office.

During that same session, Senator Greenleaf won a $614,000 appropriation to train defense lawyers, and to examine other Capital Defense Resource Centers.[67]

This money was to have been controlled by the Pennsylvania Commission on Crime and Delinquency, and the training was to have been done by the Philadelphia Federal Defender’s Office. Governor Ridge impounded the money when the Pennsylvania District Attorney Association voiced opposition to the training.[68]

Our recommendation here is that Pennsylvania should provide adequate training for capital defense attorneys, and study how other Capital Defense Resource Centers work.

Prosecutorial mischief. In Illinois, the police were fabricating evidence. There was falsified evidence. There was falsified testimony.[69] One of Illinois' "hanging judges" was convicted of taking bribes in such cases. The implication is that "money was more important than life".[70]

Ø The Director of the FBI ordered full disclosure of all files in the Timothy McVeigh case. ¾ of them were never released to either the prosecution or the defense.[71]

Ø Joseph Salvati spent 30 years on death row. He was released and exonerated when a judge found that “FBI agents hid evidence that would have proven his innocence.”[72]

Ø Joyce Gilchrist was a lab chemist who was directly responsible for sending 23 people to death row. 11 were executed before it became evident that she had been tampering with the evidence.[73]

Ø Philadelphia's William Nieves was convicted on the testimony of a prostitute who was granted free use of her corner in exchange for her testimony.[74] She testified that the perpetrator was Negro. Nieves was Hispanic.

Ø Eddie Baker spent 26 years in prison here on a murder conviction based on the testimony of a schizophrenic.[75]

Ø Neil Ferber was released from Pennsylvania’s death row in 1982 after a jailhouse snitch was convicted of perjury.[76] Barbara Graham was convicted by the testimony of a jailhouse snitch who was then given a reduced sentence.[77] 46 people in Illinois were sentenced to death based on similar - snitch - testimony, and virtually every one of these convictions came into doubt.[78]

Ø Leonel Herrera was convicted based on a confession which the prosecutor admitted was coerced. The Court refused to overturn the conviction because admission of the confession was "harmless error."[79] He was executed in 1993.

The prosecutor’s decision to press for the death penalty is not a mathematical formula. Prosecutors make very subjective decisions about when to seek the ultimate sentence. "More than half of the death sentences rendered in Pennsylvania are cases from Philadelphia, a city with only 14% of the state's population. Philadelphia's District Attorney, Lynne Abraham, has earned a reputation as being ‘The Deadliest D.A.’ at least in America.”[80]

Our recommendation here is that Pennsylvania study whether “death penalty cases are handled similarly by all district attorneys throughout the Commonwealth.”

Jury selection is an essential part of the process, and prosecutors often make a practice of “death qualifying the jury.” Philadelphia’s Assistant District Attorney Jack McMahon prepared a training film on how to keep people from certain groups of people off high-level criminal juries. The tape urged prosecutors to pick juries that they knew would be unfair. Subordinates who failed to comply with the directive were dismissed.[81]

Trial procedure Once the jury is chosen, they are given a “structured verdict form” in which they make certain "findings of fact”.[82] These findings tend to remain “undisturbed” through the subsequent appeals process.[83] Both "evidence that was available during trial" and "after discovered evidence" tend to be disregarded once the jury has spoken.[84]

Ø An easy example of this is that Barbara Graham was executed for bludgeoning a woman with a gun using her right hand. Subsequent tests determined that she was not strong enough to inflict the injury. She was also left-handed. The new information could not be considered.[85] It was not concurrent with the trial.[86]

Ø Another person had confessed to the crime for which Leonel Herrera was executed.[87]

After discovered evidence There is also a problem with time limits for after discovered evidence. Virginia will not consider information which is discovered more than 21 days after the sentence is rendered.[88] Texas has a 30-day limit on discovery.[89] In Pennsylvania it is one year.[90] Science continually improves effective techniques. Under present law, evidence from these tests is not available to anyone who was sentenced 365 earlier. Nor are any other techniques which may be developed in the future.

Our recommendation here is that the statute of limitations on after-discovered forensic evidence should be eliminated.

Precedents There is also the problem implied with our concept of "precedents." The courts tend to rely on legislative guidance and previous court decisions. They tend to do what has worked in the past. This makes them inherently reluctant to consider anything new. Every test which we now accept as reliable took years to work its way into the court system. Today we are having trouble-admitting DNA. A century ago we had the identical problem admitting fingerprints. The concepts were novel, so the evidence was not received.

Process and procedure The problem with trials also appears in “process and procedure." Courts are controlled by protocol. Nicholas Yarris's offer of DNA proof was rejected by the court because, "Fact that further (DNA) testing was underway, without any results, was insufficient to establish new evidence, for purposes of the statutory exceptions to the one-year time period for filing post conviction relief petition."[91] The test results arrived too late, so the exculpatory evidence was excluded under the one-year statute of limitations.

Appeals. The Pennsylvania statute requires that every death sentence be reviewed by the Supreme Court to determine whether 1) the sentence was a product of passion, or 2) the evidence fails to support at least one of the “aggravating circumstances” listed in the statute.[92] After this “direct appeal” the defendant may file “collateral appeals” regarding things like the evidence, testimony and adequacy of counsel. These state level appeals may be followed by "habeas corpus" appeals in the federal courts. The process often involves seven years, and costs $2.16 million per execution more than a murder case with a life sentence.[93]

Capital punishment supporters, like Tom Ridge (Pennsylvania), George Bush (Texas) and Roy Barnes (Georgia), argue that these seven years[94] of appeals more than adequately protects the accused.[95] This reflects the common misconception that appellate courts take full jurisdiction over a case. That is simply not correct.[96] Appellate courts only answer the specific, technical, questions they are asked by the lawyers.[97] As mentioned, 23 people have been executed with the full knowledge of their innocence. One death row inmate is freed for every seven who are executed.[98] That’s 12.5%.

Attorney Ralph Kates thinks “the appeals system is pretty good at finding prosecutorial and police misconduct.” Still, it is extremely rare for the court to contradict a mistaken jury finding.

Governor’s review[99] After all the appeals have been exhausted, the Governor reviews the case, with the power of clemency. Governor Ridge has never granted clemency.[100]

Legal paradigm The point of this review of the legal system is to show that it does not actually work.

Full Jury Information

Bennett specifically objected that juries are not fully informed.

"We should also rewrite the statutes to provide that before the death penalty can be imposed, the jury have full information about the convicted murderer or rapist, including a psychiatric examination. And we must provide that capital punishment may never be imposed by a judge acting alone, and that three-man panels of judges must be convened to pass on capital cases when the jury so recommends."

The untrammeled authority that concerned Bennett is exactly what concerned the Supreme Court in Furman. No one should have unlimited authority to sentence another person to death. Pennsylvania’s Sentencing Statute[101] gives juries positive guidance in the form of 18 specific circumstances which may justify the death penalty, and the court’s first duty in the automatic appeal is to verify that at least one of these is substantiated by the evidence.

Parole

Yet, Pennsylvania still does not give the jury essential pieces of information. We are one of the few states that do not offer parole to inmates with life sentences.[102] In Pennsylvania, "Life means life!" Unfortunately, neither the public nor the juries are told this.

Under current practice, life imprisonment is not explained to the jury unless the prosecutor urges execution because of the accused's future dangerousness.[103] If the prosecutor does not use that specific argument, the jury is not told that the accused will never be eligible for parole. The prosecutor controls what the jury is told.

Pennsylvania jurors have often complained to both judges and counsel, that the only reason they found for the death sentence was to prevent the offender from ever getting loose on the streets again. They were concerned about "revolving door" paroles. Their concern was for public safety. If they had known that the offender could never be paroled, they would have found for life imprisonment.

The availability of parole should be explained to the jury whenever it “endeavors the moral judgment whether to impose the death penalty.”[104] The process for executive clemency under the Governor’s review should also be explained.

The “Truth in Sentencing Bill”[105] addressed this specific issue. “The court shall instruct the jury that life imprisonment means life in prison without consideration for parole. The court shall further instruct the jury that the Governor, upon the unanimous recommendation of the Board of Pardons, has the power to grant a pardon or to commute a sentence of death or life imprisonment.”

Our recommendation here is that the juries be fully informed of their sentencing options in all capital cases.

DNA

DNA testing now provides critical forensic information to identify the offender. Each person’s DNA is specific. There is a 1 in 2 quintillion chance of coincidence.[106]

In January 2001 it lead to David Kennedy’s arrest for a crime in 1977.[107] That same month, an arrest warrant was issued in San Francisco “not against a named suspect but against the genetic code of the semen sample taken six years earlier.”[108] Similar DNA arrest warrants have been issued in Milwaukee since 1999. They have also been used in Kansas, New York and Utah.

Pennsylvania already collects DNA from murderers, and shares the data with the FBI.[109] This is done for the explicit purpose of gathering “exculpatory or inculpatory evidence.”[110]

“Over the last several months at least ten states (Arizona, California, Delaware, Illinois, Michigan, Minnesota, New York, Oklahoma, Tennessee and Washington) have enacted bills that permit post-conviction DNA testing under certain circumstances. The Department of Justice's National Commission on the Future of DNA Evidence has proposed a model statute.”[111]

As of 2000, only New York and Illinois would pay for DNA tests on behalf of the accused.[112] Stated another way, this forensic evidence is available to the prosecution on demand, but to the accused only when they can afford the $5,000 cost. Since 97% of the accused are paupers, the tests are available to one side but not the other.

"I think there are men on death row who could be freed, exonerated, with proper evidence if we had DNA and more scientific proof."[113]

The Canadian, David Milgard, "was convicted of the rape and murder of a woman. He was in jail for 22 years. Finally they proved he didn't do it by a DNA test. DNA is right 99.9% of the time. If capital punishment had been legal in Canada, an innocent person would have been put on death row. He would be dead.”[114]

This issue has now come squarely before our legislature. Senator Greenleaf’s “DNA Rights Bill” would give capital inmates a chance to review scientific evidence that could prove their innocence.[115] The Bill provides that 1) an accused may apply for a DNA test on specific evidence, 2) regardless of when the evidence was discovered, 3) if it would help establish the accused’s actual innocence. The Commonwealth is charged with preserving the evidence. The test must be done by a credible laboratory. The cost of the test would be paid by the accused. If the accused were indigent, the cost would be paid by the Commonwealth. If the test results show that the accused is not the offender, he can be released or have his sentence reduced.[116]

Inmate Nicholas Yarris has spent 11 years trying to get DNA tests admitted, but has been frustrated by the rules of procedure.[117] The DNA Rights Bill could establish his guilt or innocence.

Our recommendation here is that DNA information, should be available to any party at any time in the proceedings.

Family rights

Frank Errant follows the Torah that execution should be the victim’s option.[118] Once the guilty verdict is rendered, and the death sentence set, it is not the right of the State to make the ultimate decision. The victim's next of kin, as "blood avenger," has a right to demand or stop an execution.

Not all families seek vengeance against the offender. “In recent years, a new feeling has swept across this land. Abolitionist groups against the death penalty have sprung up all over. And murder victims' families are stepping forward to say forgiveness, not execution, is the solution to the healing of wounds.”[119] This was the express purpose of the Journey of Hope which campaigned across Pennsylvania in August, 2000. Families of victims campaigned to demand a halt to executions. Execution is not sufficient for closure.[120] Pope John Paul II went to his attacker and reconciled with him.

Senator Helfrick has introduced bills which give victims’ families more power in death penalty proceedings.[121] Senate Bill 28 would make the victim’s family’s wishes one of he mitigating factors during sentencing. Under Senate Bill 29, “the prosecutor shall not seek nor the sentencing court impose a sentence of death where the victim's (family) indicates that (they do) not want the death penalty to be imposed.”

This bill would reduce the political purpose of execution without diminishing the power of the State. It would restore the power to the victim.

Our recommendation here is that Pennsylvania adopt legislation that would respect the victim’s family’s objection to capital punishment

Statutory Harmony

Bennett was concerned over the conflict in the laws about the death penalty.

"It goes without saying that, in capital cases, the federal and state laws ought to be brought into harmony."

The Commonwealth of Pennsylvania has traditionally adhered to the "best of practice" in its legislation on capital punishment. We have shown in the endnotes to the Appendix that our Sentencing Statute is substantially consistent with the Federal 1994 and 1996 Violent Crimes and Law Enforcement Acts. There is a spectacular exception: Racism.[122]

69% of the people executed for crimes they committed as minors were black. 6% were from other minorities.

96% of the studies show a race-of-victim, or race-of-defendant discrimination.[123] 83% of death penalty verdicts involve white victims, even though only 50% of the murder victims are white.[124] The race of the victim influenced the likelihood of being charged with capital murder, or receiving the death penalty, 82% of the time.[125]

In Philadelphia blacks receive the death penalty 38% more often than any others.[126] 18% of the black defendants are sentenced to death.[127]

Some prosecutors make a practice of eliminating blacks from their prospective juries. They believe this increases the chance of winning a race-based decision. The Philadelphia County Attorney’s training film emphasizes the importance of keeping blacks off high-level criminal juries. It details how to keep - specifically black women and blacks from low-income areas - off the jury. The tape urged prosecutors to pick juries that they knew would be unfair. The Philadelphia Prosecutor struck 52% of all black jurors, between 1983 and 1993. Only 23% of other jurors were stricken.[128]

America's population is 13% black, yet 12 of the 17 people on Maryland's death row are black.[129] 151 of the 241 people on Pennsylvania's death row are black.[130] That’s 62.7%.

40% of the people executed since 1977 were black, and 30% of those executed in 1998 were black.[131] 12% of the executions between 1930-1966 were for crimes other than murder. Well over half of those executed were black.[132]

“A study of the capital cases from 1924 to 1968 (showed) seventy five of the 460 cases involved co‑defendants, who were given separate trials. In several instances where a white and a Negro were co‑defendants, the white was sentenced to life imprisonment or a term of years, and the Negro given the death penalty.”[133] This is not “soft profiling” where race is one of the factors, it is “hard profiling.” Race is the controlling factor.[134]

On September 12, 2000 the US Justice Department released an internal study regarding the application of the death penalty in federal cases.[135] 682 people had been eligible for the death sentence under federal statutes since 1995. 80% of these people were non-whites. 186 of those people had been sentenced to die. 74% were minorities. 72% of those who Attorney General Janet Reno recommended for execution were minorities.[136] Reno recognizes the gross unfairness in these numbers, and initiated a study of racial bias that could have existed in her prosecutors.

Jury Instructions

The 1994 Crime Control Act speaks directly to the issue of race. "Before making a sentencing determination, the judge (must) instruct the jury that its determination may not involve consideration of race, color, religious beliefs, national origin, or sex of either the defendant or the victim.”[137]

Pennsylvania does not require such a jury instruction, but it implies that the Supreme Court may consider race during its automatic review of death sentences.[138] Such a jury instruction would not be a panacea to racism, but it would put the issue squarely in front of the jury, and would provide an explicit ground for appeal.

Our recommendation here is that Pennsylvania should amend 42 CPSA 9711(c) Instructions to the Jury to provide:

(1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters:

(vi) The jury determination may not involve consideration of race, color, religious beliefs, national origin, or sex of either the defendant or the victim.

Racially Discriminatory Capital Sentencing Act

Studies of 1,000 capital cases between 1976 and 1980 disclosed a serious racial bias in prosecution and sentencing.[139] Black defendants were sentenced to death nearly 40% more often than others. 18 of every 100 black defendants were sentenced to death, but only 13 of every 100 non-blacks.

When the data was then broken down according to the severity of the murder, blacks were 15 times more likely to be prosecuted as capital cases than other defendants. When the data was broken down according to the race of the accused and the race of the victim, blacks who killed whites were 38 times more likely to be prosecuted for execution. The racial basis of the decision to prosecute became blatant.

This information was presented to the US Supreme Court in McCleskey v Kemp,[140] but the Supreme Court ruled that it was inadmissible unless the defendant could show racial bias in that specific case.[141] This burden of proof is almost insurmountable.

In one instance, the arresting officer boasted to Clarence Brandley that, “One of you two is gonna hang for this. Since you’re the nigger, you’re elected.”[142] That was a singular instance. What are the chances of a defendant 1) obtaining such testimony, 2) getting the judge to allow it into the record and 3) having the witness survive cross-examination? Is it almost zero?

Pennsylvania changed its sentencing statute after the McCleskey decision. It no longer allowed our Supreme Court to consider whether “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.”[143] This statistical data is now excluded at both the trial and appellate level.

The Judiciary Committees of both Houses of Congress drafted legislation to reverse McCleskey.[144] When H.R.4092/H.R.3355 passed the House, they provided:

a) No person shall be put to death under color of State or Federal law in the execution of a sentence that was imposed based on race.

b) A finding that race was the basis of the decision to seek the death sentence may be established if the court finds that race was a statistically significant factor in decisions to seek or to impose the sentence of death in the jurisdiction in question.

“In the words of the House report, the proposal ‘is a civil rights measure and adopts evidentiary procedures similar to those employed against racial discrimination in other civil rights laws. It is based on the realization that prosecutors, judges and jurors will rarely if ever admit that they were purposefully discriminatory in seeking or imposing the death penalty in a particular case. Statistical analyses are generally accepted as reliably measuring the influence of racial discrimination in complex decision making processes. The Racial Justice Act is consistent with other civil rights laws under which an inference of racial discrimination can be established through the use of statistical evidence showing a significant racially discriminatory effect.”[145] This would allow the courts to measure both hard and soft racial profiling.

This “Racially Discriminatory Capital Sentencing Act” was immediately endorsed by the American Bar Association,[146] but it has never been adopted in Pennsylvania. Statistical evidence of prejudice cannot be admitted at any stage of the proceedings here.

Our recommendation here is that Pennsylvania adopt the Racially Discriminatory Capital Sentencing Act.

Inequity

Pennsylvania is also out of harmony on other specific points.

The United Methodist Book of Resolutions follows the Social Principles about the inequity of the death penalty:[147]

"The death penalty also falls unfairly and unequally upon an outcast minority. Recent methods for selecting the few persons sentenced to die from among the larger number who are convicted of comparable offenses have not cured the arbitrariness and discrimination that have historically marked the administration of capital punishment in this country.”

Poverty The preponderance of offenders on death row are from impoverished backgrounds. "Ain't nobody with money on death row!"[148]

A specific example of this inequity was reported on July 7, 2000.[149] Texas millionaire Allen Blackthome hired three men to kill his ex-wife. When one of the hit men confessed and testified, Blackthome was sentenced to life imprisonment. He was able to afford good counsel.

Juveniles Only six countries in the world execute children.[150] The United States leads the pack. We have killed 346 of them since 1642. 13 people have been executed for juvenile crimes since 1990.[151] 74 more are on death row now.[152]

The US Supreme Court has held that the execution of people as young as 16 is not cruel or unusual punishment, and set no age limit on how young the offender may be.[153] Mississippi recently prosecuted 13 year olds. Florida is prosecuting a 7 year old.[154]

Miriam White is both retarded and disabled. At 11, she decided that if she harmed an adult she could go back to the group home and be with her friends again. Since the wounds she inflicted were fatal, she is being tried as an adult, and Philadelphia’s prosecutor could seek execution.[155]

In 1983, the American Bar Association adopted a policy opposing, "in principle, the 
imposition of capital punishment upon any person for any offense committed while under
 the age of eighteen (18)." This is one of the issues which encouraged their call for a 
general moratorium.[156]

Pennsylvania's 42 CPSA 9711(e)(4) specifically includes "The age of the defendant at the time" among the Mitigating Circumstances to be considered in sentencing. This makes our Commonwealth's language consistent with the Federal provisions,[157] but it gives no specific guidance.

Senate Bill 27 Session 2001 would change the law to read that anyone under 17 is presumed incapable of a capital crime. Any person accused of a crime they committed as a juvenile could not be executed.

Our recommendation here is that crimes committed by minors should not result in execution.

Mental incompetence Twelve of the states with death penalty laws forbid the execution of people who are mentally retarded,[158] yet 34 of them have been executed since the Gregg decision.[159] In 1999 a man with an IQ of 51 was exonerated two days before his scheduled execution.[160]

Pennsylvania’s Joey Miller, who had an IQ between 62 and 68, was scheduled for execution on May 4, 2000. The court granted a stay 30 hours before his execution.[161] Daniel Saranchak, who was incapable of formulating the specific intent to kill, was spared within hours of execution.[162]

Pennsylvania's 9711(e)(3) includes the defendant's ability to "appreciate the criminality of his conduct" among the Mitigating Circumstance to be considered in the sentencing hearing.[163] As with minors, there is no specific guidance.

Senate Bill 26 Session 2001 would exclude people with IQs below 70 from execution. House Bill 1861 Session 2001 would exclude those with IQs below 60. Current Federal law provides that no one can be executed who does not understand what is going to happen to them. If they do not understand what “executed” means, they are exempt from the death penalty.[164]

Our recommendation here is that crimes committed by mental incompetents should not result in execution.

Moratorium on the Death Penalty

Bennett saw that the practice had fallen into disuse, even in the United States:

"In 1935 I made a list of the 184 executions that had taken place in the federal and state jurisdictions during the year and noted that executions were being carried out at a rate of eighteen for every thousand homicides. In 1964, the year in which I retired, there were twenty-one executions at a rate of three per thousand homicides. Since then the actual use of the death penalty has declined further. In 1965, of sixty-seven men condemned to death, sixty-two were reprieved. In 1966 only one man was executed in the whole country, and in 1967 there were two. In 1968, for the first year on record, there were no executions in the United States. Today more than four hundred condemned men wait in death cells, while their attorneys maneuver through the appellate process. It is safe to say that most of them will be reprieved or their convictions set aside because they were denied a fair trial."

Bennett was right. The last execution by the Federal Bureau of Prisons was on March 11, 1963.[165] There were no executions in the 50 states between 1967 and 1979.

This moratorium has been broken, and the use of the death penalty has resumed.[166] There have been 629 executions in the United States since 1979, and executions continue at the rate of 55 per year. 68 people were executed in the American states just in 1998.[167]

We have executed 350 people in Pennsylvania since 1915. Two were women.[168] Four of these people died between 1946 and 1962.[169] Then, in 1995, Governor Tom Ridge took office. He resumed executions immediately. Keith Zettlemoyer died on May 2, and Leon Moser on August 16, of that year. Gary Heidnik on July 6, 1999. Each of these three men had abandoned their appeals, and submitted to execution.[170] Gov. Ridge has signed 214 death warrants since taking office.[171] The courts have set aside all but three of them. Our courts are simply reluctant to kill people.

The People's Republic of China has exceeded all other nations by executing 3,000 of its people under its "Strike Hard" Campaign. It is followed by Saudi Arabia and Iran. Then comes the United States. These four nations account for some 89% of all the executions in the world.[172]

These raw numbers are shocking. Yet there is more to it. Even with all these executions, the use of the death penalty has actually declined. Oklahoma's Governor Keating points out that, "Since capital punishment was re-imposed in 1977, there have been more than 480,000 killings in our society and 629 executions. That's 1/12th of 1%. Oklahoma has had 8,000 homicides since 1977 and 29 executions. That's less than 1/3 of 1% of all the homicides there."[173]

Justice Brennan spoke to the decline in Furman v. Georgia:

"The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime. There has been a steady decline in the infliction of this punishment in every decade since the 1930's, yet our population and the number of capital crimes committed have increased greatly over the past four decades. The contemporary rarity of the infliction of this punishment is thus the end result of a long-continued decline. That rarity is plainly revealed by an examination of the years 1961-1970, the last 10-year period for which statistics are available (in 1972). During that time, an average of 106 death sentences was imposed each year. Not nearly that number, however, could be carried out, for many were precluded by commutations to life or a term of years, transfers to mental institutions because of insanity, resentences to life or a term of years, grants of new trials and orders for resentencing, dismissals of indictments and reversals of convictions, and deaths by suicide and natural causes."

Justice Powell voted the other way:

“indicators most likely to reflect the public's view - legislative bodies, state referenda and the juries which have the actual responsibility - do not support the contention that evolving standards of decency require total abolition of capital punishment. Indeed, the weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition."

The two opinions are really not all that far apart. Justice Powell emphasized that the public wants to retain the right of capital punishment, but Justice Brennan focused on the reduction of its actual use. Eight of the states which re-passed death penalty statutes after the Furman decision have never executed another inmate. Neither has the federal government nor the military.

As if to confirm Bennett and Brennan’s predictions, Columbia University released a June 2000 review of 4,578 death sentence appeals between 1973 and 1995 across the country. 68% of the sentences were thrown out. 41 % were thrown out on state direct appeal, 6% were thrown out in state collateral appeals, and 21% were thrown out in federal appeals. 18% were retried and sentenced to death again. 32% were not reversed on appeal. Only 5% of the sentences were actually carried out. 313 people were executed between 1977 and 1995, and more than that have been executed in the last five years.[174]

We have discussed that Pennsylvania's Sen. Helfrick has introduced Senate Bill 23 and 24 Session 2001 to abolish the death penalty. He has also introduced Senate Bill 25 Session 2001 to have a moratorium until the process can be studied.[175] The church supports this legislation.[176] 72% of the people in Pennsylvania favor a moratorium.[177] 89% of Pennsylvanians believe that innocent people are now in jail for murder, and 83 percent think that innocent people have been executed under current laws.[178]

The argument against a moratorium is expressed by people like Rep. Asa Hutchinson; "Whenever the evidence is absolutely clear and it has been reviewed by the courts, I don't think we ought to have a moratorium. I think what we have to do is to make sure that the system works in each individual case.”[179] US Deputy Attorney General Eric Holder joins with Hutchinson; “The number of cases where we (in the Federal system) have actual claims of factual innocence are less than 1%.”[180] Attorney General Janet Reno resists a moratorium because she only recommends execution where the case has been well investigated.[181]

The argument for a moratorium is made by people like Frank Errant, "I can say with certainty that the justice system in any country is not certain enough to administer certain death with any certainty.”[182] The legal system simply isn't good enough to establish a capital murder case in which there is no chance of either a factual or legal error "The death penalty is final. It allows no chance to correct errors.”[183]

As Rod Thomas says, “The proof must be as certain as the penalty.”

Our overriding recommendations here are that:

we should eliminate capital punishment from all criminal codes and work with other groups for its elimination, and

we support a moratorium on executions until the entire process can be effectively reviewed.

Abolition of Capital Punishment

Bennett continued this line of thinking by showing that international standards also run against the death penalty.

"Most of the other countries of western Europe, and Japan have abolished the death penalty."

Bennett said that in 1970. Since then, all the remaining Western nations have abolished the death penalty. All of the former Warsaw Pact nations abolished it as soon as the Berlin Wall came down in 1988.[184] Every society from Vladivostok to Vancouver has eliminated the death penalty.

Not even 90 nations in the world still retain the death penalty. Almost all of these are authoritarian or totalitarian states.[185] The United States is the sole exception. It - and some 36 of the individual states - retain it. Pennsylvania is one of these states.[186]

The European Union will not accept an application from any nation which retains the death penalty. “The EU has passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and called on all the states within the United States to abolish the death penalty. At least 33 European states have now ratified Protocol Number 6 to the European convention for the protection of Human Rights and Fundamental Freedoms, which also abolishes the death penalty in peace time.”[187]

The United Nations Commission on Human Rights petitioned for the abolition of the death penalty in both 1997 and 1998.[188] The penalty violates Articles 3[189] and 5[190] of the Universal Declaration of Human Rights.[191]

Virtually every denomination and faith has called for the abolition of the death penalty.[192] His Holiness Pope John Paul II has implored the world to abolish capital punishment because the taking of any life diminishes all life. His words were, "I appeal for consensus to end the death penalty”[193]

The American Medical Association refuses to participate in executions because it is a violation of their Hippocratic Oath.[194]

Senator Russ Feingold and The Death Penalty Information Center extend this list of objectors substantially. It grows every day.

The death penalty is passing out of human history because it no longer serves its intended purpose. The state cannot claim that it is necessary for the perpetuation of its power, it is not an effective deterrent, it has no basis in retribution or vengeance, and it does not compensate the victims. When Governor Ryan declared his moratorium in February 2000, Northwestern Law School Professor Lawrence Marshall[195] reported that there was 8l% support behind it. "The people of Illinois are saying that no civilized society should be executing innocent people.”[196]

Pennsylvania's Senator Helfrick has introduced SB23 Session 2001, which provides: "A sentence of death shall not be imposed as a punishment for any criminal offense." The death sentence would be abolished.

The Abhorrence of Capital Punishment

Bennett was concerned that the death penalty was immoral.

"Over the years, I have found myself increasingly appalled by the nature of the penalty I was often responsible for carrying out. "

In 1980 the Social Principles of the United Methodist Church condemned "the 'torture of persons by governments for any purpose', and asserted that it violates Christian teachings.”[197] Methodists further stated that there can be no assertion that human life can be taken humanely by the state.[198] We also declared our opposition to the retention and use of capital punishment in any form, or carried out by any means, and urged the abolition of capital punishment.[199]

In 1992 and 1995 The United Methodist Church again held that with these truths in mind, it is important that we, as United Methodist Christians stand against terrorist acts in the forms of retaliation or capital punishment.[200]

In 2000 the General Conference again held that we "are deeply grieved by the use of the death penalty in the United States." We deplore its use, "and are embarrassed by this immoral practice in many states in the United States."[201] We were specific: "The General Boards of Global Ministries and Church and Society and their affiliates throughout the denomination and ecumenical partnerships are instructed to develop strategies of education and political action to eliminate this foul act."[202]

A Review of the Scripture

Like Bennett, we are appalled by the nature of the penalty. A review of the Biblical experience with homicide confirms our perception.[203]

The first instance was Cain's premeditated killing of Abel.[204] Cain was punished, but not executed.[205] Rabbi Beerman shows this as a model of how God handles homicide.[206]

Homicide is then addressed in the Ephraimite Covenant Code.[207]

"Whosoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may flee. But if a man willfully attacks another to kill him treacherously, you shall take him from my alter, that he may die."

The entire community was charged with protecting the accused, and adjudicating the matter.[208] Only after malicious intent was proven was the accused removed from God's protection so "the blood avenger" could execute him.[209]

This "lex talionis" language is repeated in the Torah on two more occasions.[210] There is little to no evidence that this was ever taken literally, even in the desert. The limit on tort reprisals was “the value of” an eye for an eye, and “the value of” a tooth for a tooth. The amount of compensation for the loss of an eye, which is a permanent partial loss, would be greater than that for the loss of a tooth which is a temporary partial loss. In order to have “only one manner of law” compensation and restitution were based on money damages. Even the language of the passage, "an eye tahat an eye," meant "as payment for" rather than "as punishment for" an eye.[211]

Despite the common assumption to the contrary, lex talionis does not justify the death penalty.[212] The humaneness of Rabbinical law required such a procedure, and a burden of proof, for conviction that there were almost no executions in Israel.[213] "Blood vengeance was the best wisdom of the times, but the Rabbis made execution impossible."[214]

At the same time lex talionis was being developed in the Torah, a simultaneous theme was being developed about vengeance. Deuteronomy is the most specific. "Vengeance is mine says the Lord."[215] This is another illustration of the humanness of Biblical law. Lex talionis put a cap on retribution.[216] It eliminated vendettas. Vengeance was assigned only to God.[217] We still do not execute anyone on either Saturday or Sunday because it is the Sabbath.[218]

Another specific incident of first-degree homicide came when King David had Uriah killed.[219] David would have been executed under 42 CPSA 9711(d)(2). He ordered the death. God did not do what Pennsylvania would. As with Cain, David was given a life sentence without any possibility of parole.[220]

Jesus Christ specifically addressed both lex talionis and vengeance in the Sermon on the Mount.[221]

“You have heard that it was said of men of old, 'You shall not kill; and whoever kills shall be liable to judgment.' But I say to you that every one who is angry with his brother shall be liable to judgment; whoever insults his brother shall be liable to the counsel, and whoever says 'You jerk!' shall be liable to the hell of fire. So if you are offering your gift at the alter and there remember that your brother has something against you, leave your gift there before the alter and go; first be reconciled to your brother, and then come and offer your gift. Make friends quickly with your accuser, while you are going with him to court less your accuser hand you over to the judge, and the judge to the guard, and you will be put in prison; truly I say to you, you will never get out till you have paid the last penny.”

“You have heard that it was said, 'An eye for an eye and a tooth for a tooth.' But I say to you do not resist one who is evil. But if anyone strikes you on the right cheek, turn to him the other also;”

Jesus Christ then personally rejected the moral authority of the people who were ready to execute someone.[222]

"'Let him who is without sin among you be the first to throw a stone at her.'

...when they heard it they went away... and Jesus was left alone with her standing before him.

Jesus said to her, 'Woman, where are they? Has no one condemned you?'

She said 'No one, Lord.'

And Jesus said, 'Neither do I condemn you; go, and do not sin again."'

This reconciliation of lex talionis and vengeance with forgiveness and agapé is consistent throughout the New Testament. St. Paul mandated that we not judge one another;[223]

“Beloved, never avenge yourselves, but leave it to the wrath of God; for it is written, ‘Vengeance is mine, I will repay, says the Lord.”

St. Peter mandated that we not seek vengeance.[224]

“Do as Jesus did in all things. He lived and died as an example to you. ... He did not seek vengeance when men reviled all form of evil against him, but he trusted all things to the God who sees into men’s hearts and judges justly.”

The United States Attorney General, Janet Reno's opposition to capital punishment is based on its tendency toward vengeance. This is not a sound reason for any action. Nor can the United Methodist Church accept retribution or social vengeance as a reason for taking human life.[225] Humans cannot atone for their own sins, even with the forced termination of their life.[226]

When another life is taken through capital punishment, the life of the victim is further devalued.[227] "The price of hating other human beings is loving oneself less."[228]

Guy W. Meyer identifies two major underlying values, or assumptions in capital punishment.

1) “The first is a belief that "justice" or "revenge" is more sacred than the human life which must be sacrificed for it.

2) The second is a belief that power is of paramount importance, and more important than human life. The concept of vengeance is based in personal power."[229]

Rev. Pat Robertson argues that the death penalty assumes that the person can never change. In the instance of Karla Faye Tucker, the execution was pure blood vengeance. The drugged woman who committed crimes with a pickaxe was not the same born again Christian who was executed 12 years later.[230]

The essence of Bennett's objection here is that the death sentence is appalling. The Methodist position is that it is immoral, it is based on vengeance, and degrades humans to objects.

The Ineffectiveness of Capital Punishment

Bennett’s opposed capital punishment because it is ineffective:

"As my experience increased, so did my conviction that capital punishment was no deterrent to rape, kidnaping, armed robbery, or most homicides. The five states with the lowest murder rates (Wisconsin, Minnesota, Iowa, North Dakota, and Vermont) have in fact abolished the death penalty, and have seen no increase in willful killings since they did so. Abolishing the death penalty, furthermore, does not indicate a softening of approach to crime and violence. It has been shown time and again by riots, police brutality, and unrestrained gunfire that violence begets violence."

More than 40 years of progressively rigorous scientific studies overwhelmingly failed to support the thesis that capital punishment deters homicide more effectively than does imprisonment.[231]

Some of the studies compared the homicide rates among the states. These included, comparisons between states with and without the death penalty. Others compared homicide rates when the death penalty was in use or not in use. These studies have consistently shown as many -- or slightly more -- homicides in states which were using the death penalty.[232]

Executions are ineffective deterrents to murder. 84% of the presidents of America's top criminology societies rejected the idea that the death penalty acts as a deterrent to murder.[233] The United States House of Representatives Select Committee on Crime found that the death penalty had little or no effect on criminal conduct. The findings affirmed that the severity of punishment did not deter crime as well as the certainty of capture.[234] Both Furman and Gregg conceded that the threat of capital punishment appears to have little impact on impulsive homicides, and the evidence of its detrimental influence on deliberate homicides is inconclusive.[235]

629 people have been executed in the United States since Gregg. 164 of these have been killed in Texas, 59 in Virginia, and 43 in Florida. These three states constitute half of the total executions in the country.

Texas continues to execute someone about every other week, and is responsible for over a third of all the executions in the United States.[236] The State of New York is demographically similar to the State of Texas. There have been no executions in New York since Gregg, yet their crime rate is somewhat lower than that of Texas.

"In order for the death penalty to deter murder, the killer has to take into account the possibility of getting caught. Most do not, or else they would not have committed the crime in the first place. If any penalty is going to deter, then what's wrong with life without parole? Some criminals, I bet, would prefer death rather than a life spent behind bars, maybe in solitary. Trouble is, they don't consider punishment at all."[237] "I can empathize with the urge to seek equivalency. But the killers cannot be punished enough, and the dead cannot be helped, so our obligation is to the living. Some of them, as innocent as you and me, will be put to death in the hollowed name of deterrence. That, though, is the one crime that really can be deterred."[238]

"The only way to implement the death penalty while the crime is still fresh in our minds is to restrict the appeals process. This does not serve as a deterrent, it only increases the number of innocent people being executed. This would make the effort toward deterrence a death penalty lottery for indigents who can't purchase an adequate defense. These people would die because of someone else's concept of deterrence. The unfortunate chain of violence will serve a double purpose by an increased perpetuation of the death it claims to be deterring, and it can also be a form of social control over the poor."[239]

Some 67% of Americans say they favor the death penalty. Then, when these same people are asked whether they would insist on the death penalty if they knew that life imprisonment for capital crimes meant no possibility of parole, the numbers drop to 22%.[240]

Pennsylvania juries state that they find for the death penalty only to keep the offender off the streets. Their motive is safety rather than vengeance. Ashihara is right. "It's all about safety.”[241]

"We must eliminate violence as an acceptable option. As long as violent means of resolving conflict is acceptable, it will not, if our history is an example, be the last resort. Violence will become the first resort. This is in spite of overwhelming evidence that violence is an incredibly ineffective means of resolving conflicts. There is tremendous evidence that capital punishment does not deter violent crimes. Most violent crimes are impulsive acts, or acts of passion which are, by definition, not amenable to deterrence by consideration of the consequences.”[242]

The Church is convinced that the use of the death penalty would result in neither the reduction of crime in general nor the lessening of the particular kinds of crime against which it was directed.[243] Homicide - the crime for which the death penalty has been used almost exclusively in recent decades - increased far less than other major crimes during the period of the moratorium (from 1967 to 1979).[244]

An average of one out of seven executions is a mistake.[245] I was in Grove City for the 1999 Western Pennsylvania Annual Conference of the United Methodist Church when someone publicly stated that every execution prevents seven murders.[246] This is a common misunderstanding of the research. It is backwards, and contradicts the experience of the states or nations. The actual data is that for every seven executions, one innocent person dies. That’s a 14% error rate.

Our overriding recommendation here is that capital punishment should

be abolished because it fails to deter homicide or other crimes.

Application of the Death Penalty

Bennett objected to the way the sentence was applied.

"The least we should do is reduce the number of crimes for which the death penalty may be imposed, specifically ruling out most types of murder, armed robbery, and rape. As a concession we may perhaps retain the death penalty for high treason, mass murder, or multiple murders, the assassination of the President, murder-for-hire, the kidnaping and/or rape of children under fourteen, and the murder of law-enforcement officers engaged in the performance of their duties."

It is amazing how consistent Bennett's list is with the 18 aggravating circumstances set out in Pennsylvania law. If the state must have the right to capital punishment at all, these appear to be the most defensible reasons.

There are larger, underlying questions.

Is execution ever justified? Justice Brennan set out four criteria in Furman.

1) “Punishment must not be so severe as to be degrading to the dignity of human beings.”

2) “The State must not arbitrarily inflict a severe punishment.”

3) “A severe punishment must not be unacceptable to contemporary society.”

4) “If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.”

Justice Brennan’s first three criteria have already been discussed. His fourth reaches a larger question. What purpose is served through execution that cannot be achieved through life imprisonment without any possibility of parole?[247]

There is a tradition that courts should do the least thing necessary to rectify the problem. Punitive acts, and punitive damages, are the exception rather than the rule. Contracts and statutes are not invalidated unless there is no other remedy. The concept of retribution and deterrence in criminal law follows this tradition. The Founding Fathers made a social compact which charged the government with insuring “the domestic tranquility.”[248] They then devoted half of the Bill of Rights to assuring judicial procedure and the rights of the accused.[249]

Our society now believes that effective prisons are part of insuring domestic tranquility. Methodists believe that prisons are for "confinement, punishment, and rehabilitation."[250]

Confinement Some people must be removed from society either for their protection or for society's protection. They are either mentally or emotionally unable to cope with daily affairs. Although prisons, operated under a police mentality, are not the place where these people are best served, they are the current solution. In Europe, people who commit crimes because they are retarded, sociopaths, psychopaths, or addicts are placed in asylums which are operated under a medical mentality. No one can remain in a German prison for more than 25 years. In Hungary the cap is 15.[251] Any person who commits an act which would justify a longer internment is viewed as needing medical or psychological care. Confinement is best achieved under proper care.

Punishment Every offence carries a punishment. Illegal parking elicits a fine. Excessive illegal parking warrants a tow truck. The legal term for this is "retribution". When retribution is systematically, and severely imposed, that offender - and possibly other potential offenders - will avoid that behavior. The legal term for that is "deterrence." Drivers who know that the streets are well patrolled, and that parking fines are $100 for the first offense, are likely to feed the meter. That is a basic concept of retribution and deterrence. The meter maid has the power to call the tow truck on every expired meter, but such a practice would quickly be held "excessive". Similarly, if the meter maid only called the tow truck on red Camaros, the practice would be stricken as "arbitrary." The basic concept is that capture must be systematic, and punishment must be reasonable.

Rehabilitation As mentioned, some people can never be restored to society. Their rehabilitation is to change them from offenders to wards. Bishop Tutu and Charles Colson believe that the larger group can be restored as citizens; if 1) the offender takes responsibility for the offence, 2) the victim is willing to forgive the offence, and 3) restitution is performed.[252] This "restorative justice" reflects the Code of Deuteronomy.[253] It views capital offences as against God, to be judged by God. Offences between humans are torts which require reconciliation. This reconciliation is why the Methodists lead the demand that Pennsylvania’s legislature require restitution in all criminal verdicts.[254]

There are three criticisms of restorative justice. First, some of its advocates see it as a panacea for all crimes and sentences. Second the judicial and police mind set tends to stack the restorative process on top of the existing verdict. Such a negative approach leaves the offender worse off than before. Finally, our capitalist orientation tends to confuse reconciliation with money.

The rabbis enforced the Deuteronomic Code to mean that the society and the victim each had the duty to train the offenders in a manner and skill that would prevent them from falling back into offense. Another ritual was provided for offenders who could not be rehabilitated.[255] It was not viewed as a panacea, the sentences were not stacked, and money was paid only for special damages.[256] Whether or not the offender could be rehabilitated, the underlying concept was to restore the offender to membership in the society.

If “confinement, punishment, and rehabilitation” are the reasons for imprisonment, the only remaining reasons for execution are vengeance, economy, and power. The issue of vengeance has already been addressed.

Economy Loud and emotional arguments are raised for economy. “It is a waste of taxpayers' money to house life time sentences for people who have committed harsh crimes like murder, rapings, etc. For one-year regular cell cost would be $24,000, and for maximum security it's $75,000.”[257] "The money could be better spent educating people so they don't end up with a criminal lifestyle.”[258] “It is cheaper to execute people than to imprison them for life.”

Justice Marshall repudiates this argument on its face:[259]

“As for the argument that it is cheaper to execute a capital offender than to imprison him for life, even assuming such argument, if true, would support a capital sanction, it is simply incorrect. A disproportionate amount of money spent on prisons is attributable to death row. Condemned men are not productive members of the prison community, although they could be, and executions are expensive. Appeals are often automatic, and courts admittedly spend more time with death cases.”

The most comprehensive study in the nation found that the death penalty costs North Carolina $2.16 million per execution more than a murder case with a life sentence. Another study found that executions cost California $90 million a year beyond the ordinary costs of the justice system, including $78 million at the trial level. In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of 40 years imprisonment in a maximum security cell.[260]

State Power “Anglo-Saxons did not execute a murderer. They fined him. Heavily. Relatives on the father’s side paid two-thirds. On the mother’s side, one third.”[261] The idea that offences against persons or property were actually crimes against the king did not begin until William the Conqueror.[262] From that time, executions were used to enforce the power of the state. The list of crimes which warranted execution grew to over 200. By the time of George III, loitering was a capital offence.[263] The list of offenses has now come down to one or two, but the state retains an interest in demonstrating its power. Governor Ridge has publicly boasted about his willingness to sign death warrants to maintain an image as “tough on crime”. He executed as many men in four years as Pennsylvania had executed in the previous 40 years. Pennsylvania Governors are charged with personally reviewing death sentences after the appeals have been exhausted. They now have a political conflict of interest.

Justice Brennan spoke directly to state power at the conclusion of his opinion:

“Rather than kill an arbitrary handful of criminals each year, the States will confine them to prison. The State thereby suffers nothing and loses no power. The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal.”[264]

Our overriding recommendation here is that we should abolish capital punishment.

1) It is degrading.

2) It is arbitrarily enforced.

3) It conflicts with social mores.

4) And it exceeds the needs of the State.

Prevention

Having expressed his concerns about the death penalty, Bennett made a single contribution regarding crime prevention.

"The single most important contribution American families can make to the fight against crime is to stimulate their boys' interest in their education and in development of skills of every type. No fewer than 54.7 % of felony inmates in the federal system did not go to high school, and another 27.6% were high school dropouts. In other words, only 12.4% of felony inmates are high school graduates, only 4.2% have had one to three years of college, and 1. I% are college graduates. An important motivation toward crime is lack of education, using that term in its broadest sense - religious education, moral training, character building - not lack of intelligence. The IQ levels of the felony inmates were comparable to the national averages. The federal prison records also show that unskilled men outnumber the skilled men overwhelmingly."

In 1970, the United States had a higher percentage of its population in prison than any other country in the world, having recently surpassed South Africa.[265] By 1999 only Russia exceeded us.[266]

97% of the prison population come from abusive homes. 30% are first time drug offenders.[267] 80% of all crime is drug related.[268] Our recidivism rate is 91%.

There has been a sharp drop in serious crimes across the country since 1994. This is a remarkable 7½ years.[269] The FBI announced a 10% fall in serious crimes reported to police in the first half of 1999, and the Justice Department confirmed those figures in August 2000.[270] Deputy US Attorney General Nicholas Guess attributed the decline to the success of after school programs, and our ability to keep more children in school for more years.[271] President Clinton attributes it to more police on the streets and fewer guns in the wrong hands.[272] Governor Bush attributes it to tougher laws, longer sentences and lowered parole rates.[273]

There are other, similar police, and better federal explanations.

Ø There are fewer people in the crime-prone 15-25 year old age group.

Ø The national employment rate continues to be quite high as the healthy economy continues to create jobs.

Ø There has been a decline in drug use, such as crack cocaine.

Ø Anti-gun campaigns by local gun controls.

Ø Crime prevention program aimed at young people.

Ø Ever more use of security agencies or mechanisms.[274]

Bennett urged that the most effective crime prevention device was education, skill development, moral training, and character building.

California has initiated the Phoenix Program to turn around its recidivism rate. Under the existing programs, offenders use the system to develop new resources or contacts to resume their drug business after parole. 70% of these people are re-arrested. Under the Phoenix Program, offenders are encouraged to take responsibility for their situation and avoid the practices which caused them to get arrested. The recidivism rate becomes substantially lower. California presently spends $87 million on the Phoenix Program, which equals $27,000 per year for each offender in the program. This is half the cost of ordinary imprisonment.[275]

Then there's Texas' Gainesville State School where students who would ordinarily have been lost to the school system are taught effective, saleable skills. The arrest rate among these students has declined to the state's average.[276]

Attorney General Janet Reno believes that the cause of crime, and racial disparity in crime and imprisonment, is found in the injustice in our society.[277] People like Michael Jordan, Gen. Colin Powell, and Tim Russet are directors of America's Promise Board. During the 2000 Republican Convention, Colin Powell discussed how 27% of all black males had prison experience. He attributed this to the lack of positive guidance from homes and communities.

The United Methodist Church is deeply concerned about the present high rate of crime in the United States and about the value of a life taken in murder or homicide.[278] We are convinced that our nation's leaders should give attention to the improvement of the total criminal justice system and to the elimination of social conditions that breed crime and cause disorder, rather than foster a false confidence in the effectiveness of the death penalty.[279] The community of faith, and the society at large, should demonstrate greater initiative and responsibility in providing inclusive, positive guidance to persons of all ages regarding "religious education, moral training, and character building.

The House Select Committee on Crime found a direct correlation between moral and religious training and crime reduction.[280] Increasingly rigorous studies continue to find that there is a direct correlation between effective time spent with parents and a reduction in violent crime. If there is an absence of parental or social support, children turn to alternative support groups. Police investigations of adolescent criminal behavior have found a correlation between gang membership and a need for affirmation. Further, they have found a general lack of clear moral definition in the adolescent population.

It takes a village to support a child. The community must improve its outreach programs, especially to children at risk, as part of its youth and education programs.

Endnotes

---

[1] James V. Bennett was the second Director of the Federal Bureau of Prisons. He served from 1937-1964. His memoir, I Chose Prison was published in 1970. The actual wording of his concerns is published here as an appendix.

[2] Dr. Thomas is a ThD in Law and Theology from Southwest University. His dissertation was on The Covenant Code as Law, which traced the earliest Biblical codes through current law in Wyoming and Hungary. He is a Director of A United Methodist Witness in Pennsylvania, and of the American Paralegal Association.

[3] This article was originally completed on November 26, 2000. It has been substantially revised to reflect the new session’s legislation. The data is current as of April 3, 2001. Incidental amendments are continuously inserted to keep it as current as possible.

[4]. The prison riots in Attica, New York were on Sept. 9-13, 1971. They are depicted in Up Against the Wall.

[5]. House Select Committee on Crime, Reform of our Correctional System, June 26, 1973. Unfortunately the report has fallen into disuse. The Superintendent of Documents no longer has it on file, and the microfiche copy at the University of Pittsburgh had not been checked out for over ten years.

[6]. Furman v Georgia, 408 US 238, 239-240 (1972).

[7]. 428 US 153, 49 L.Ed2d 859.

[8]. Justice Marshall, Furman v Georgia.

[9]. 38 states adopted death penalty statutes in compliance with Furman v Georgia: Alabama, Arizona, Arkansas, California, Colorado, Connecticut*, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas*, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire*, New Jersey*, New Mexico*, New York*, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota*, Tennessee*, Texas, Utah Virginia, Washington, and Wyoming. The Federal Government* and the US Military* also have specific death penalty provisions. 49 U.S.C. App. 1472(i)(n) and 1473(c) provide capital punishment for murder during air piracy, and 21 U.S.C. 848 provide for murder in the course of drug kingpin operations. Congress has not revived the death penalty as a federal sentencing option, except in these two narrow instances. CRS Report to Congress, “Racial Justice and Capital Punishment: The Racially Discriminatory Capital Sentencing Provisions of the House Passed Crime Bill (H.R.4092/H.R.3355)”, May 4, 1994 (CRS), p. 2.

* Indicates the 8 states and 2 federal jurisdictions with no executions since at least 1976 when Gregg v Georgia was decided.

12 states have no death penalty statutes: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. Nor is there a death penalty in the District of Columbia.

Pennsylvania’s 42 CPSA 9711 was enacted on December 30, 1974.

Timothy McVeigh was the first federal execution since 1948. He was convicted of the Oklahoma City bombing.

[10]. Attorney General Mike Fisher is viewed as the author of the statute. PAUADP, July 24, 2000.

[11]. Gregg v Georgia, 428 US 153, 183 (1976).

[12]. Gary Gilmore petitioned his own execution in 1977 as an extension of "suicide by cop". The first involuntary execution was Florida's John Spenkelink on May 25, 1979.

[13]. Oklahoma Gov. Frank Keating, "NBC Meet the Press," May 7, 2000. “CAPITAL PUNISHMENT” ACLU March 11, 2001.

[14]. Governor Tom Ridge took office that year.

[15]. Gov. George Ryan called for the moratorium on February 2, 2000. “All Things Considered,” National Public Radio (NPR). Virginia, Maryland and Texas are also reviewing their laws. John Howard, Wall Street Journal, “Washington Week in Review,” PBS June 8, 2001.

[16]. Senator Greenleaf (R-Montgomery) held the hearings on Senator Helfrick’s (R-Northumberland) moratorium bill on February 21-25, 2000.

[17] Senate Bill 23 of Session 2001 was Senate Bill 106 of Session 2000. Senate Bill 24 of Session 2001 was Senate Bill 107 of Session 2000.

[18] Senate Bill 25 Session 2001was Senate Bill 952 Session 2000. Rep. Jesse Jackson Jr. (D-IL) has also proposed a seven-year national moratorium in HR 4126.

[19] Senate Bill 26 Session 2001was Senate Bill 108 Session 2000.

[20] Senate Bill 27 Session 2001was Senate Bill 109 Session 2000.

[21] Senate Bills 28 and 29 Session 2001were Senate Bill 953 Session 2000.

[22] Senate Bill 589 Session 2001was substantially revised from Senate Bill 1495 Session 2000. SB 1495 was introduced and referred to the Judiciary Committee on July 13, 2000. It was reported as committed on September 26, 2000, given first consideration on September 26, 2000, and re-committed to the Judiciary Committee on Nov. 20, 2000. SB 589 is the product of that staffing. 37 CPSA 59.3(b) already requires convicts to provide DNA to the FBI to gather “exculpatory or inculpatory evidence.”

[23] Senate Bill 1496 Session 2000 has not been introduced into Session 2001 yet.

[24] Senate Bill 1510 Session 2000 has not been introduced in Session 2001 yet.

[25]. The Book of Discipline of the United Methodist Church - 1996, (Discipline) Social Principles 68F, p. 103.

[26]. The Book of Resolutions of the United Methodist Church - 1996 (Book of Resolutions), p. 502-504. Similar resolutions were adopted in 1980 as "Equal Justice", "Grand Jury Abuse", "Local Church and Local Jail”, and "Penal Reform”. In 1984 the church adopted its "Criminal Justice" resolution. In 1988 it adopted its "Victims of Crime" resolution, and in 1992 and 1996 it adopted its "Terrorism” resolution. Although these need to be brought into accord with each other, that is only incidental to our scope here.

[27]. Daily Christian Advocate Advance Edition, (DCA) "Capital Punishment” p. 79-80.

[28] Senator Edward W. Helfrick (R- Northumberland) has advocated the abolition of the death penalty in Pennsylvania for over seven years.

[29] Senate Bill 952 Session 2000 was to study whether race, class and economics played a role in the way the death penalty was meted out. Micek, The Beaver County Times February 27, 2000, p. A8.

[30]. NBC, February 5, 1999. Rev. Pat Robertson, "Meet the Press" NBC, May 7, 2000.

Attorney Jerry Spence won a $12 million judgment for wrongful prosecution from Cook County, Illinois for one of his clients. Others have been prevented from filing claims because they must win a pardon for their conviction even after they have been released. "The Death Penalty", CBS 60 Minutes, April 30, 2000.

"The flawed system is now embarrassing us as a nation." Rev. Jesse Jackson, "Face the Nation”, CBS, June 25, 2000.

Anyone who gets 13 out of 25 wrong does not even warrant an F-.

[31]. Peaceworks, p. 6.

[32]. Micek, The Beaver County Times, October 5, 1999, p. A9. The Governor’s decision came when the 13th person was proven innocent. That time it was by the defense team.

[33]. "The Death Penalty," CBS 60 Minutes, April 30, 2000.

[34]. Gov. Frank Keating, "Meet the Press", NBC, May 7, 2000.

[35]. On July 19, 1998 the front page of The Beaver County Times,, showed 217 people on Pennsylvania's death row. On October 3, 1999 it reported "221 men and four women.” By February 27, 2000 it reported 230 people. Nationally there are 3700 people on death row, 38 are women. “The Execution of Timothy McVeigh” 60 Minutes, May 13, 2001.

[36]. Micek, The Beaver County Times,, May 21, 2000, p. Al 5. Jeff Gammage, “Free Man Talking,” The Inquirer, Sunday, April 15, 2001, p. A1.

[37]. Beaver County Times, July 19, 1998, p. A8. "P85 Capital Punishment", Children and Poverty. p. 331.

[38]. “The News Hour with Jim Leher”, PBS. Professors Barry Schief and Peter Newfeld direct The Innocence Project at Cordozo Law School. 65 People have been proven innocent through DNA testing. “The Case for Innocence,” Frontline, PBS, November 2, 2000.

[39]. "The Death Penalty" CBS 60 Minutes, April 30. 2000.

[40]. The number 85 comes from The Beaver County Times, February 20, 2000, p. A17. It was current as of that date, but it is continuously increasing. Nieves as number 89 comes from Gammage, “Free Man Talking”, Philadelphia Inquirer Sunday Magazine, April 15, 2001, p. A1.

Two of these have been women. “Wrongful Convictions and the Death Penalty,” The Vision, January 1999, p. 7.

Kenneth Waters was released after 16 years because of DNA evidence. He is the 10th person so released from death row because of DNA evidence. NBC Nightly News, March 16, 2001.

“77 persons had been released from death row since 1976 because they were not guilty of the crime for which they had been condemned to death. 33 of these releases occurred between 1990 and 1999. These lucky interventions occurred …usually after the condemned had been on death row for over 10 years.” “The Death Penalty” ACLU Briefing Paper, No 14, Updated Spring 1999.

[41] “Crossfire,” CNN, April 13, 2001.

[42] Senator Russell Feingold, “A New Millennium: Time to Stop Tinkering with the Machinery of Death,” Columbia University School of Law, April 10, 2000, p.1.

[43]. Death Penalty Information Center, Facts About the Death Penalty, March, 1999, p. 4. In Spite of Innocence. 350 death row inmates were proven innocent between 1900-1995.

[44]. Robert Reeves, "Abolish the Death Penalty", March 29, 1999. Peaceworks p. 6.

[45] Furman v. Georgia

[46]. The ABA's moratorium call came as Resolution 106 from the House of Delegates, on February 3, 1997. NPR, "All Things Considered" July 6, 2000.

[47]. "P85 Capital Punishment", 1998 Official Journal of the Western Pennsylvania Annual Conference of the United Methodist Church (Children and Poverty) , p. 33 1; 1999 Official Journal of the Western Pennsylvania Conference of the United Methodist Church (Equipping Spiritual Leaders) p. 283. "The Death Penalty", CBS 60 Minutes, April 30, 2000. Richard C. Dieter, Death Penalty Information Center, The Death Penalty in Black & White: Who Lives, Who Dies, Who Decides, June 1998, p. 26. “The Death Penalty” ACLU Briefing Paper, No. 14, Updated Spring 1999.

[48]. PAUADP, August 21, 2000

[49]. "They're not well represented. The counsel sometimes have about a year out of law school and they're in complex murder trials." Rev. Pat Robertson, "Meet the Press" NBC, May 7, 2000.

[50] This $800 was collected from the defendant’s family in Texas. NPR February 3, 2001. “Defending a capital case is time consuming, taking 700-1,000 hours. In some jurisdictions the hourly rates for appointed attorneys in capital cases are less than minimum wage, and usually much less than the lawyer’s expenses.” “The Death Penalty” ACLU Briefing Paper, No. 14, Updated Spring 1999.

[51]. "The Death Penalty", CBS 60 Minutes, April 30, 2000.

[52]. Gov. Frank Keating, "Meet the Press" May 7, 2000.

[53]. "The Death Penalty", CBS 60 Minutes, April 30, 2000

[54]. Rev. Jesse Jackson, "Face the Nation”, CBS, June 25, 2000. Conviction on the testimony of a single witness is a line item violation of Numbers 35:30.

[55]. The Beaver County Times, February 20, 2000, p. A17. Nieves was released from prison on October 20, 2000 after eight years on death row. He was 35.

[56]. American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, February 1989. Pennsylvania's Unitary Review of Death Penalty Cases, 42 CPSA 9572, specifically address the issue of legal incompetence by legislating (a) that the trial court had to appoint a new defense attorney, for the collateral review, within 30 days of the death penalty verdict. (b)No attorney could serve who had been involved with the case. (c) Elaborate standards were adopted for the new appointment, which were substantially consistent with the ABA standards. 42 CPSA 9573 then allowed 120 days for the review petition to be filed. The entire Unitary Review Act was suspended by the Pennsylvania Supreme Court on August 11, 1997. Senator Patrick Leahy (D-VT) has introduced the Protection of Innocence Act which would amend the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3753) to assure that defendants were represented by competent counsel.

[57] The Beaver County Times, April 10, 2001, p. B2. Justice Sandra Day O’Conner joined with Justice Ginsberg when she spoke in Minnesota.

[58]. Gov. Frank Keating, "Meet the Press", May 7, 2000.

[59]. "Excesses of the Death Penalty", The New People, February 2000, p. 8.

[60]. John L. Micek, The Beaver County Times, October 24, 1999, p. A16.

[61]. Micek, The Beaver County Times, May 21, 2000, p. Al 5.

[62]. Rev. Jesse Jackson "Face the Nation' June 25, 2000.

[63]. Micek, The Beaver County Times, February 27, 2000, p. A8.

[64]. Micek, The Beaver County Times, February 27, 2000, p. A8. Robert Dunham, the head of that office is one of the Commonwealth’s top death penalty lawyers. Micek, Beaver County Times, April 11, 2001, p. A8.

[65] Sen. Stewart J. Greenleaf (R-Montgomery) is Chairman of the Senate Judiciary Committee. He is considered "the father of modem capital punishment in Pennsylvania”, and is viewed as the final arbiter on criminal justice matters in the upper chamber. Micek, The Beaver County Times, May 21, 2000, p. Al 5.

[66]. Micek, The Beaver County Times February 27, 2000, A8. This Senate Bill 1495 Session 2000 has not yet been re-introduced in the 2001 Session.

[67]. Micek, The Beaver County Times, May 21, 2000, p. A15. The hearings were on February 21-25, 2000. It is important to note that the $614,000 appropriation in SB1 was for a study committee. It did not fund the Centers. The money will be doled out to the State Commission on Crime and Delinquency. “The purpose was to guarantee that even the poorest defendants receive lawyers who are as qualified as those who are seeking to end their lives.” Micek, The Beaver County Times, February 27, 2000, p. A8.

[68] Governor Ridge has since withdrawn his reluctance to spend the money, so SB 869 may actually be enacted.

[69]. Rev. Pat Robertson, "Meet the Press", NBC, May 7, 2000.

[70]. "The Death Penalty", CBS 60 Minutes, April 30, 2000.

[71] Attorney General Ashcroft stayed McVeigh’s execution for 30 days while the FBI files were examined. NBC News, May 10, 2001.

[72] The Beaver County Times, May 4, 2001, p. C1. Brady v Maryland 373 US 83 (1963) requires police and prosecutors to disclose any exculpatory information. Robert Mueller built a reputation for using “Brady Waivers” during plea bargains to suppress information which would have shown that the accused was innocent of the accused crime.

[73] “Under the Microscope” 60 Minutes II, May 9, 2001.

[74]. The Beaver County Times, February 20, 2000, p. Al 7. Other evidence was concealed by the prosecution during the trial. The details of Nieves’ subsequent trial, with competent counsel, are discussed in Gammage, “Free Man Talking.”

[75] Robert Zaller, “People of Pennsylvania have Spoken: Put the Death Penalty on Hold,” Philadelphia Inquirer, April 21, 2001. Zaller is a professor of history at Drexel University.

[76]. In Spite of Innocence

[77]. I Want to Live

[78]. "The Death Penalty", CBS 60 Minutes, April 30, 2000; I Want to Live.

[79]. NPR, July 6, 2000.

[80]. Richard C. Dieter, The Death Penalty in Black & White: Who Lives, Who Dies, Who Decides", Death Penalty Information Center, June 1998, p. 7; T. Rosenberg, "The Deadliest D.A.", The New York Times Magazine July 16, 1995, p.22.

[81]. The Death Penalty in Black and White, p. 22-23. A “Death Qualified Jury” is one where everyone who is opposed to the death penalty has been challenged off.

[82]. See 42 CPSA 9711 (f) in the Appendix.

[83]. See 42 CPSA 9711(h)(3) in the Preface. The 1996 Anti-Terrorism and Effective Death Penalty Act requires federal judges to accord these a "presumption of correctness." New People February 2000, p. 9; 28 USC APPENDIX - RULES OF APPELLATE PROCEDURE Rule 22. The VII Amendment to the US Constitution specifies that in civil cases, “no fact tried by a jury shall be otherwise reexamined in any court.”

[84]. Commonwealth v Yarris, 731 A.2d 581. This “the Doctrine of Finality” is legally controlling. “The Case for Innocence”, Frontline, PBS, November 2, 2000.

[85]. I Want to Live

[86]. Gov. Frank Keating, "Meet the Press", May 7, 2000.

[87] Senator Russ Feingold

[88]. Gov. Frank Keating, "Meet the Press", May 7, 2000.

[89]. New People, February 2000, p. 8; Peaceworks , p. 7.

[90]. 42 CPSA 9545(1) is shown in the Appendix. I would personally like to eliminate this statute of limitations and admit either inculpatory or exculpatory evidence whenever it is found. There is no statute of limitations on murder, so why is there a statute of limitations on execution?

[91]. Commonwealth v Yarris

[92]. 42 CPSA 9711(h) is provided in the appendix.

[93]. Radelet & Bedau, In Spite of Innocence, Northwestern University Press, 1992. The cost of execution in Pennsylvania ranges from $1 million to $3 million per case while life imprisonment costs $500,000. “CAPITAL PUNISHMENT” ACLU, March 11, 2001.

[94]. The number “seven years” is an average. The precise number of appeals, and the years involved, varies with each case. Gary Graham's case was appealed for 19 years through 33 judges. MSNBC, June 22, 2000. Gov. Keating sets the national average at 11 years and 12 appeals. "Meet the Press" NBC, May 7, 2000.

[95]. Pennsylvania’s Attorney General, Michael Fisher reflects this attitude: "Each case gets reviewed thoroughly. You don't get the death penalty until you're tried and convicted. Plus there's the collateral review, the federal appeals process and the review by the governor. I don't believe, except for the rarest exceptions, that you'll get innocent people on death row." Micek, The Beaver County Times , October 4, 1999, p. A8.

[96]. 42 CPSA 9711(h) sets out precisely what the Supreme Court may consider. This is provided in the Appendix.

[97]. Peaceworks, p. 7; Micek, The Beaver County Times, February 6, 2000, p. A6.

[98] Senator Russ Feingold, “A New Millennium: Time to Stop Tinkering with the Machinery of Death,” Columbia University, April 10, 2000.

[99]. 42 CPSA 9711(i)

[100] Gov. Ridge granted Randy Haag a reprieve on April 26, 1996. In Texas The Board of Pardons and Paroles consists of 18 people who are appointed by the Governor. They are paid $80,000 to review convictions and sentences. They never meet. They only correspond.[100] Still, Governor Bush has released 15 people from death row, and has granted another man a 30-day stay of execution pending DNA test results. Rev. Jesse Jackson, "Face the Nation,” June 25, 2000. Pennsylvania uses the Pennsylvania Commission on Sentencing. Gov. George Bush, "NBC Nightly News", June 23, 2000.

Under 42 CPSA 9545, people convicted of first-degree homicide are not eligible for parole in Pennsylvania.

[101]. 42 CPSA 9711.

[102]. 42 CPSA 9729(c). The Pennsylvania Prison Society, The Beaver County Times, August 10, 1998, p. B8. The Western Pennsylvania Conference of the United Methodist Church passed a resolution that Pennsylvania juries should be informed that life imprisonment means there is no possibility of parole. "P72 Full Jury Information" 2000 Official Journal of the Western Pennsylvania Conference of the United Methodist Church.

“In the 29 states that have sentences of life without parole, 23 have statutes that bar judges from letting jurors know that they have that sentencing option. Since studies consistently show that when given the choice between a death sentence and a sentence of life without parole, most people will choose the latter, failure to inform the jury of this alternative is tantamount to sending more people to the execution chamber.” “The Death Penalty”, ACLU Briefing Paper, No 14, Updated Spring 1999.

[103]. Simmons v South Carolina, 512 US 154 (1994). Shafer v South Carolina, http://laws.findlaw.com/us/000/00-5250.html, modifies this rule to say that the jury does not need to be informed when there is a third sentencing option.

[104] Shafer v South Carolina

[105] Senator Greenleaf’s Senate Bill 1510 Session 2000 has not been introduced in the 2001 Session yet.

[106] “Jailhouse DNA” CBS 60 Minutes II, March 20, 2001.

[107] Beaver County Times, January 12-13, 2001, p.1. This case, California v Paul Robinson, is to be argued on January 19, 2001.

[108] Beaver County Times, January 7, 2001, p.D2.

[109]. 37 CPSA 59

[110]. 37 CPSA 59.3(b)

[111] Testimony of Larry Frankel, Executive Director of the ACLU of Pennsylvania, before Pennsylvania’s Senate Judiciary Committee on March 26, 2001. http://www.aclu.org/news/2001/n032601b.html

[112]. Ellen Gray, The Beaver County Times, May 5, 2000, p. 22. "The Innocence Project', NPR, June 6, 2000. Commonwealth v Godschalk, 679 A2d 1295 (1996).

[113]. Rev. Pat Robertson, "Meet the Press" NBC, " 7, 2000.

[114]. Nonviolence Web, March 1999.

[115]. Micek, The Beaver County Times, February 27, 2000, p. A8.

Greenleaf’s Senate Bill 1495 Session 2000 was introduced on July 13, 2000. It was referred to his Judiciary Committee, reported out and considered by the Senate on September 26, and Re-committed to the Judiciary Committee on Nov. 20, 2000. His SB589 Session 2001 is supported by 26 co-sponsors. The Committee held hearings on the bill on March 26.

[116]. Senator Patrick Leahy's (D-Vermont) The Innocence Protection Act, SB 2690, is a comprehensive package of criminal justice reforms aimed at reducing the risk that innocent persons may be executed. Most urgently, the bill would (1) ensure that convicted offenders are afforded an opportunity to prove their innocence through DNA testing; (2) help States to provide competent legal services at every stage of a death penalty prosecution; (3) enable those who can prove their innocence to recover some measure of compensation for their unjust incarceration; and (4) provide the public with more reliable and detailed information regarding the administration of the nation's capital punishment laws. The Beaver County Times, February 17, 2000, p. D1. President Clinton said he "would sleep better at night' if such legislation really worked.

[117]. Commonwealth v Yarris

[118]. Numbers 35:19-21

[119]. Judy Rosenblum, "What Part of "Thou Shalt Not Kill" Don't We Understand?" PAUADP, August 21, 2000.

[120]. “The Execution”, Frontline PBS, April 25, 2000. “Witness to Execution”, NPR, October 12, 2000. “Deadly Encounter” Dateline, July 16, 2000. Dateline, July 12, 2000.

“The purpose of PAUADP's Journey of Hope is to spotlight murder victims' family members who do not seek revenge.” PAUADP, "Journey of Hope", June 27, 2000.

[121]. Senate Bill 953 Session 2000 was re-introduced as SB 28 and 29 Session 2001.

[122] Justice Douglas devotes almost his entire opinion in Furman to the racial inequity of executions.

[123]. David Baldus' 1998 Report to the ABA. The report was by the Death Penalty Information Center. See also “The Death Penalty” ACLU Briefing Paper, No 14, Updated Spring 1999.

[124]. Facts about The Death Penalty, p. 2.

[125]. US General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, GAO/GGD 90-57, February 1990.

[126]. The Death Penalty in Black and White, p. 7.

[127]. The Innocence Project, p. 8.

[128]. The Death Penalty in Black and White, p. 22-23. A “Death Qualified Jury” is one where everyone who is opposed to the death penalty has been challenged off.

[129]. "Washington Week in Review", PBS, June 23, 2000.

[130]. Micek, The Beaver County Times, October 24, 1999, p. A16. Nationally, 35% of death row inmates are black and 9% are Native American, Latino, or Asian. “The Death Penalty” ACLU Briefing Paper, No 14, Updated Spring 1999.

[131]. Gov. Frank Keating, "Meet the Press", NBC, May 7, 2000.

[132]. About half of all death penalty victims in the 20th Century have been African Americans (who comprise about 13% of the population). Tony W. Frye, "The Death Penalty", March 29, 1999.

[133]. Justice Douglas in Furman v Georgia. This is a national experience, not limited to Texas. “The Death Penalty” ACLU Briefing Paper, No 14, Updated Spring 1999, p.2.

[134] Heather McDonald, “The Myth of Racial Profiling,” City Journal, April 2001; George Will, The Beaver County Times, April 22, 2001, p.A7. Nationally, two thirds of the people on death row are black, and 80 % of the cases prosecuted are blacks. John Howard, Wall Street Journal, “Washington Week in Review,” June 8, 2001.

[135]. Michael J Sniffen, “Reno: Death penalty bias elusive”, The Beaver County Times, September 13, 2000, p. D2; “Washington Week in Review”, PBS, September 15, 2000.

[136]. Please note that Reno is personally opposed to the death penalty because it is too often based on vengeance, which is not a healthy motive.

[137]. "Crime Control Act of 1994: Capital Punishment Provisions Summarized", CRS Report for Congress, September 13, 1994, p. 6.

[138]. As shown in the Appendix, instructions to the jury for sentencing are controlled by 42 CPSA 9711(c), and the automatic review of a death sentence is controlled by 42CPSA9711(h). The intent of 42CPSA 971 1 (h)(3)(i) is to determine whether "the sentence of death was the product of passion, prejudice or any other arbitrary factor".

[139]. Dr. David Baldus has performed several subsequent studies, with several joint authors, but it is beyond our scope here to digest them. The supplemental studies affirm the original findings.

[140] McCleskey v Kemp 481 US 279, 292 (1987)

[141]. McCleskey v Kemp

[142]. The Death Penalty in Black and White, p. 5. Bradley still served 10 years before being exonerated.

[143]. This had been the language of 42 CPSA 9711(h)(3)(iii). McCleskey was decided in 1989, and the language was deleted in 1990.

[144] The record of the racial justice proposals in the next three sessions of Congress is set out in Charles Doyle, “Racial Justice and Capital Punishment: The Racially Discriminatory Capital sentencing Provisions of the House Passed Crime Bill (H.R. 4092/H.R.3355)” CRS Report to Congress, Congressional Research Service, Library of Congress, May 4, 1994.

[145] CRS report to Congress, p.10, quoting H.R.Rep.No 458, 103d Cong., 2d Sess. 4,5 (1994).

[146]. American Bar Association, Policy and Procedures Handbook, (1988); American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, February 1989

[147]. "Capital Punishment", Book of Resolutions p. 503-504; "P85 Capital Punishment', Children and Poverty, p. 331. The Beaver County Times July 7, 2000, p. 1.

As Justice Powell said in Furman v Georgia, there is an "undeniable fact that the death penalty has a greater impact on the lower economic strata of society, which includes a relatively higher percentage of persons of minority racial and ethnic group backgrounds."

This financial inequity was raised in Furman v Georgia and again in McCleskey v Kemp, 481 US 279, 344 (1987).

[148]. Dead Man Walkin', Sen. Feingold quotes the Russian proverb: “Nobody hangs with money in their pocket.”

[149]. The Beaver County Times, July 7, 2000, p. 3.

[150]. Pakistan, Saudi Arabia, Yemen, Iran, Nigeria, and the United States. National Coalition to Abolish the Death Penalty, Stop Killing Kids.

[151]. Stop Killing Kids. “Facts About the Death Penalty,” Amnesty International website

[152]. Death Penalty Information Center, Facts about The Death Penalty p. 3.

[153]. Stanford v Kentucky, 492 US 361 (1989)

[154]. NPR

[155]. The Philadelphia Inquirer, Sunday, October 1, 2000, p. A1. Pennsylvania’s 1933 Family Law Act requires that any person accused of first-degree homicide must be tried as an adult. Senator Helfrick’s Senate Bill 27 Session 2001 would prohibit execution for crimes committed under the age of 17.

[156] Frances Jett, General Board of Global Ministries February 26, 2001; http://www.abanet.org/crimjust/juvjus/

[157]. 18 U.S.C. 3592.

[158] The American Association of Mental Retardation definition of mental retardation is “An individual is considered to have mental retardation based on the following three criteria: intellectual functioning level (IQ) is below 70-75; significant limitations exist in two or more adaptive skill areas; and the condition is present from childhood (defined as age 18 or less).” 1992

[159]. Penry v Lynaugh, 492 US 361 (1989). Penry v Johnson, http://laws.findlaw.com/us/000/00-6677.html

[160]. Leo Tolstoy, "The Death Penalty", March 1999. In June 2000, Texas Governor, George W. Bush, vetoed legislation that would have prohibited the execution of people who were mentally disabled. See also The Beaver County Times, April 24, 2001, p. C2.

[161]. Miller waived his right to appeal because his crayons had been taken away as a security risk. He was confident that after his execution he would be allowed to return home to his family. Governor Ridge signed the execution warrant, and argued that Miller was competent to make legal decisions about his constitutional rights. PAUADP, August 29, 2000.

[162]. PAUADP, Legal Analysis of Daniel Saranchak's Case, November 10, 2000.

[163] “The Supreme Court has held that an incompetent is not to be executed.” “Doctor’s Dilemma: the case of Claude Matuana,” 60 Minutes, April 22, 2001.

[164] 18 USCA 3597[c]

[165]. As of May 4, 1994, the CRS Report to Congress, p. 2 reported that Congress has refused to re-instate the death penalty since the Gregg decision. It has authorized it only for murder during air piracy and murder during drug kingpin operations. On September 13, 1994 a CRS Report to Congress, “Crime Control Act of 1994: Capital Punishment Provisions Summarized” reported that “The Violent Crime Control Act of 1994 (H.R.3355) re-establishes capital punishment as a federal sentencing option.”

President Clinton granted a stay of execution to a drug kingpin on August 2, 2000. The stay will allow the accused to appeal for clemency under the new federal laws. The man was scheduled for execution in December.

[166]. "Capital Punishment", Book of Resolutions p. 503.

[167]. "The Execution”, Frontline PBS, April 25, 2000.

[168]. Males commit 75% of the homicides. The co-defendants in Barbara Graham's case testified against her, and refused to testify about her innocence on appeal. They were advised by counsel that the state would not execute a woman, and that once she was granted a reprieve the state would feel compelled to also reprieve them. I Want to Live

[169]. Elmo Smith of Montgomery County was executed on April 2, 1962,"A History of the Death Penalty in Pennsylvania", www.coir.state.pa.us/death.htm

[170]. "A History of the Death Penalty in Pennsylvania” Pennsylvania Department of Corrections, www.cor.state.pa.us/death.htm. Amnesty International; PAUADP.

[171] This data is current from the Bureau of Prisons website as of March 13, 2001.

[172]. The data from Iraq and Congo are difficult to verify. Sen. Gerald Feingold (D-Wisconsin), “A New Millennium: Time to Stop Tinkering with the Machinery of Death” Remarks of Senator Russ Feingold at Columbia University School of Law, April 10, 2000.

[173]. Gov. Frank Keating, "Meet the Press", NBC, May 7, 2000.

[174]. Laurie Asseo, AP, The Beaver County Times, June 12, 2000, p. D4.

[175]. SB25 Session 2000 called for a moratorium. It was re-introduced as SB25 in the 2001 session.

[176]. The United Methodist Annual Conferences in Tennessee, Missouri West, Virginia, Central Pennsylvania, Eastern Pennsylvania, Little Rock, North Alabama, Wyoming (portions of New York and Pennsylvania), West Michigan, North Texas, Pennsylvania-Delaware, North Arkansas, Missouri East, and New York are among those calling for a moratorium on all executions. United Methodist News Service, June 29, 2000.

The 149th Session of the Wyoming Annual Conference of the United Methodist Church called on the governors of New York and Pennsylvania to stop executions while lawmakers consider banning capital punishment. The Scranton Times, June 5, 2000.

[177]. PAUADP, September 10, 2000.

[178] Robert Zaller, "People of Pennsylvania Have Spoken: Put the Death Penalty on Hold" Philadelphia Inquirer, Saturday, April 21, 2001.

[179]. Rep. Asa Hutchinson (R-Ark), “Face the Nation”, CBS, June 25, 2000.

[180]. Sniffen, The Beaver County Times, p. D2.

[181]. “Washington Week in Review”, PBS, September 15, 2000. President Clinton does not believe that “any of the cases where the convictions occurred were wrongly decided”, but would consult with Attorney General Reno before deciding what action to take. Sniffen, The Beaver County Times, September 13, 2000, p. D2.

[182]. Frank Errant, "The Death Penalty", March 1999.

[183]. NBC, July 10, 2000.

[184]. Leo Tolstoy reported that the Russian Constitutional Court suspended the death penalty in 1998 "until a jury system is set up throughout the country." Nonviolence Web, March 29, 1999.

[185]. Countries which retain the death penalty for ordinary crimes

Afghanistan, Algeria, Antigua and Barbuda, Armenia, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Benin, Botswana, Burundi, Cameroon, Chad, China, Comoros, Congo (Democratic Republic), Cuba, Dominica, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Ghana, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kazakstan, Kenya, Kuwait, Kyrgyzstan, Laos, Lebanon, Lesotho, Liberia, Libya, Malawi, Malaysia, Mauritania, Mongolia, Morocco, Myanmar, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, (Philippines*), Qatar, Russian Federation, Rwanda, Saint Christopher & Nevis, Saint Lucia, Saint Vincent & Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, South Korea, Sudan, Swaziland, Syria, Taiwan, Tajikistan, Tanzania, Thailand, Trinidad and Tobago, Tunisia, Uganda, United Arab Emirates, United States of America, Uzbekistan, Viet Nam, Yemen, Yugoslavia (Federal Republic), Zambia, Zimbabwe. Amnesty International provides an online database of current information regarding the Abolitionist and Retentionist Countries. The list provided here is current as of November 23, 2000.

South Africa banned the death penalty shortly after Nelson Mandela took office. Leo Tolstoy, Nonviolence Web, March 29,1999.

Chile repealed the death penalty in 2001, and the *Philippines have declared a moratorium on them.

[186]. "Capital Punishment", Book of Resolutions p. 503; "P85 Capital Punishment", Children and Poverty, p. 331.

[187]. Russell Feingold

[188]. Dead Man Walkin'

[189]. "Everyone has the right to life, liberty and security of person."

[190]. "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

[191]. Nonviolence Web, March 29, 1999.

[192]. Pat Clark, The Death Penalty: The Religious Community calls for Abolition; Statements of Opposition to Capital Punishment, May 1998.

[193]. 1998 Christmas Message, "The Pope's Visit to America", January, 1999.

[194]. Amnesty International, “Faith in Action,” 1999.

[195]. Professor Marshall’s work through the legal framework is often overshadowed by his cohort’s work through journalism.

[196]. Micek, The Beaver County Times, February 20, 2000, p. A17.

[197]. Social Principles 68F, Discipline p. 103; "Capital Punishment", Book of Resolutions, p. 502.

[198]. "Capital Punishment", Book of Resolutions p. 503.

[199]. "Capital Punishment", Book of Resolutions p. 504.

[200]. "Terrorism" Book of Resolutions, p. 680.

[201]. DCA, p. 135.

[202]. DCA, p. 135.

[203] For a contrast in views, read Maria Sanminiatelli, “Digging in and battling for life,” Beaver County Times, February 16, 2001, p. A8; The Rev. Marshall Davis, “Scripture justifies the death penalty,” Beaver County Times, February 22, 2001, p. A6; and Sr. Melanie M. Bajorek, “Bible hardly favors the death penalty,” Beaver County Times, February 28, 2001, p.A6; Doug David, “God’s word allows us to take a life” and Thomas A. Joseph, “On death penalty, look at other verses,” Beaver County Times, March 5, 2001, p.A6.

[204]. Genesis 4:8

[205]. Genesis 4:11-12

[206]. Genesis 4:24; Fr. Chris Ponnet, "The Death Penalty," March 29,1999.

[207]. Exodus 21:12-14. The Noachian Laws in Genesis 9:1-7 prohibit the shedding of blood, and require that anyone who sheds any blood must have their blood shed.

[208]. Numbers 35:12

[209]. Numbers 35:19 "The blood avenger shall himself put the murderer to death; when he meets him he shall put him to death."

[210]. Leviticus 24:17,"He who kills a man shall be put to death.

Numbers 35:16-18 "...he is a murderer, the murderer shall be put to death."

Deuteronomy 19:21 provides that a witness who purgers should be given the punishment decreed for the accused.

[211]. Horwitz, p.2 and 594;The Covenant Code as Law, p.28."Capital Punishment", Book of Resolutions, p. 502.

[212]. "Capital Punishment", Book of Resolutions p. 502; "Presiding Bishop's Opening Statement on Capital Punishment", No Outcasts, May, 1990, p. 70.

[213]. George Horwitz, The Spirit of Jewish Law, Central Book Co., NY, 1953, p. 2 and 594; The Covenant Code as Law, Southwest University Press, New Orleans, 1995, p. 28.

[214]. NBC, May 11, 2000.

[215]. Deuteronomy 32:35

[216]. Compare, for instance, the sevenfold retribution sworn for Cain and the seventy-sevenfold retribution sworn for Lamech in Genesis 4:24.

[217]. "God is the only one who gets to kill people." NBC, July 11, 2000. A prime illustration of God's power and right is found in the story of Ananias and Sapphira who were killed by the Holy Spirit Acts 5:1-10

[218]. NBC, July 11, 2000.

[219]. 2 Samuel 11:14-25

[220]. 2 Samuel 12:11-12

[221]. Matthew 5:21-26; 38-39

[222]. John 8:3-1 1; "Capital Punishment", Book of Resolutions p. 502.

[223]. 1 Corinthians 6:1-7 urges settlement; Romans 12:19 rebukes vengeance.

[224]. 1 Peter 2:21-23

[225]. "Capital Punishment", Book of Resolutions p. 503.

[226]. Lee A. Moore, June 1998.

[227]. "Capital Punishment", Book of Resolutions p. 503; Guy W. Meyer, "War, Environment and Social Justice", March 18, 1999.

[228]. Rev. Pat Robertson, March 1999.

[229]. Meyer, "War, Environmental and Social Justice." "The crime is existence, the penalty is life. The great conspiracy of Peace is Mercy." Frank Errant “The Death Penalty", March 1999.

[230]. Rev. Pat Robertson "Meet the Press", NBC, May 7, 2000.

[231]. "Capital Punishment", Book of Resolutions p. 503.

[232]. "Capital Punishment", Book of Resolutions p. 503; "PS5 Capital Punishment", Children and Poverty, p. 331.

[233]. Radelet & Akers, 1996.

[234]. Reform of Our Correctional System, June 26, 1973.

[235]. Gregg v. Georgia, p. 2929-2931; "Capital Punishment", Book of Resolutions, p. 503.

[236]. "The Death Penalty", CBS 60 Minutes, April 30, 2000. Texas resumed the death penalty in 1982. The data is current as of April 30,2000.

[237]. Richard Cohen, The Beaver County Times,, June 4, 2000, p. A7.

[238]. Cohen, The Beaver County Times, June 4, 2000, p. A7.

“The majority of murders are committed in the heat of passion, and/or under the influence of alcohol or drugs, when there is little thought given to the possible consequences of the act. ‘Hit men’ and other murderers who plan their crimes beforehand, intend and expect to avoid punishment altogether by not getting caught.” “The Death Penalty” ACLU Briefing Paper, No 14, Updated Spring 1999.

[239]. Tony W. Frye, "The Death Penalty", March 29, 1999.

[240]. Scripps Howard Poll, June 22, 2000. These percentages have been fairly stable over the last several years. “50% of those surveyed chose life imprisonment without possibility of parole plus restitution to the victim’s family as an alternative to the death penalty.” “The Death Penalty” ACLU Briefing Paper, No 14, Updated Spring 1999. The ACLU is quoting the Death Penalty Information Center here. 50% of the population believes the state should retain the right of capital punishment, but 53% favor a moratorium. They want to curb the death penalty rather than eliminate it. John Howard, Wall Street Journal, “Washington Week in Review” PBS, June 8, 2001.

[241]. Ashihara, "The Death Penalty", April 16, 1999. The increase in capital cases in the late ‘70’s, 80’s and early 90’s was caused by the increase in crime. People supported it because they were frightened by violent crime. John Howard, Wall Street Journal, “Washington Week in Review,” June 8, 2001.

[242]. Rocco Hildum, "Why Do People Kill?", March 19, 1999

[243]. "Capital Punishment", Book of Resolutions p. 503.

[244]. "Capital Punishment", Book of Resolutions p. 503.

[245]. DCA, p. 80; Cohen, The Beaver County Times, June 4, 2000, p. A7.

[246]. "Capital Punishment”, DCA, p. 135.

[247]. Gov. Frank Keating believes that “If capital punishment is used at all, it should be in those rare instances where no other alternative is available.” “Meet the Press” NBC, May 7, 2000.

Erik Arh amends Gov. Keating’s position in that “Capital Punishment” should only be used on repeated criminals.”

[248]. This is the third provision of the Preamble to the Constitution.

"Under the social contract theory, which is the basis for modem society, wronged individuals give up their personal right to exact vengeance. We surrender this to the state. Hence the state is seeking retribution is a vital part of the social contract. Without this retribution, by the state on behalf of the individual, "civilization" would be reduced to vigilantism.” David Wigand, “The Death Penalty” March 29, 1999.

[249]. Article IV protects against unreasonable searches, Article V assures the rights of the accused, Article VI assures the right to trial, Article VII provides lawsuits, and Article VIII limits bails and punishments.

[250]. Discipline, 68(F)

[251]. Thomas, The Covenant Code as Law.

[252]. Bishop Desmond Tutu, “The News Hour with Jim Leher”, January 2000. Daniel W. Van Ness, Crime and its Victims, InterVarsity Press, Downers Grove, IL, 1986; Van Ness and Karen Heetderks Strong, Restoring Justice, Anderson Publishing Co., Cincinnati, OH, 1997; Robert Thomas, Offenders Judge Society, University on Minnesota, St. Paul, MN, 1976.

[253]. Deuteronomy 15:12-18; Matthew 5:21; Thomas, The Covenant Code as Law

[254]. Children and Poverty, p. 331.

[255]. Deuteronomy 15:16-18. Pillai, Light Through an Eastern Window

[256]. Exodus 21:19

[257]. Nonviolence Web, March 24, 1999.

[258]. Paul Corsentino, "Abolish Capital Punishment', March 1999.

[259]. In Furman v Georgia, Justice Marshall heard “only six purposes conceivably served by capital punishment: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions, eugenics, and economy." He defeated, and rejected, each one of them. Executions serve no purpose.

[260]. Judy Rosenblum, "What Part of "Thou Shalt Not Kill" Don't We Understand?" PAUADP, August 21, 2000.

[261]. The Beaver County Times, July 21, 2000, p. B7.

[262]. Van Ness, Crime and its Victims

[263]. Justice Marshall devotes much of his opinion in Furman to detailing the history of capital punishment.

[264]. Justice Brennan, Furman v Georgia. Justices White and Marshall concurred that life imprisonment does not diminish state power.

[265]. Up Against the Wall.

[266]. "Dateline NBC", March 1999.

[267]. NBC, May 2000.

[268]. “The Phoenix Project,” NPR.

[269]. MSNBC, November 22,1999.

[270]. The November 1999 FBI reports rely on reported crimes. The August 27, 2000 Justice Department statistics relies on interviews with 77,000 people over the age of 11.

[271]. NPR, May 2000.

[272]. MSNBC August 27, 2000.

[273]. MSNBC August 27, 2000.

[274]. "The News Hour with Jim Leher" 'PBS, November 22,1999: MSNBC August 27, 2000.

[275]. Charlie Moyer, NPR, April 16, 2000.

[276]. NPR, June, 2000.

[277]. Sniffen, The Beaver County Times, September 13, 2000, p. D2; “Washington Week in Review”, September 15, 2000.

[278]. "Capital Punishment", Book of Resolutions p. 503.

[279]. "Capital Punishment", Book of Resolutions p. 504.

[280]. Reform of our Correctional System, June 26, 1973.