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A House Without A Blueprint

 

After 20 years, the death penalty is still being meted out unevenly

 

For years, most Americans have agreed that especially vicious murderers should be executed. Yet 20 years after the Supreme Court ended a four-year moratorium on death sentences, executions remain rare. The convoluted case of Gary Burris helps explain why.

 

On a freezing winter night in 1980, robbers took $40 from an Indianapolis taxi driver, forced him to disrobe and shot him in the head. His naked body was found the next morning, frozen to the pavement. Burris admitted taking part in the murder, and he was convicted within a year. But his attorney failed to present evidence about Burris's early life--he grew up in a house of prostitution after being abandoned by his mother--that might have persuaded jurors to spare his life. That omission led to a series of appeals, a second sentencing and an execution initially set for last November. Two codefendants plea-bargained their way to lesser penalties, but 16 years after he was arrested, Burris is still on Indiana's death row, waiting for a test case he has brought over a new federal law to wend its way through the courts.

 

The flawed and seemingly endless Burris case reflects the huge gap between the rhetoric surrounding the death penalty and the reality of applying it. Despite wide public support for executions, only about 1 in 100 murderers ends up on death row, and in many ways the method of choosing who gets death and who gets life still resembles the lightning strike it was compared to in 1972, when the Supreme Court suspended executions and said states must devise more-rational sentencing methods.

 

The long wait. In the 20 years this week since the court allowed executions to resume, the justice system has been a model of inefficiency. Some 3,122 convicts occupy 36 death rows across the nation, and the annual execution total in the past two decades peaked last year at 56; there have been 18 in 1996. And the 31 men executed in 1994 had sat on death row for an average of 10 years.

 

Politicians and judges share the blame for the mess. While Congress and many state legislatures consistently have voted to make more crimes punishable by death, "the judicial system has tied itself in knots trying to carry out the popular will while also addressing the misgivings of those who have strong moral objections," says Alex Kozinski, a conservative California federal appellate judge who calls the death penalty "the ultimate run-on sentence."

 

The Supreme Court is a prime culprit. Two decades of decisions attempting to sort out the rules for executions have left prosecutors and defense lawyers more confused than enlightened. The complex doctrines, wrote legal scholars Carol and Jordan Steiker in the Harvard Law Review, have "grown like a house without a blueprint--with a new room here, a staircase there, but without the guidance of a master builder."

 

As the court tinkers with difficult but often peripheral issues, critics say that what should be the foundation of the process--the defense system--is increasingly shaky. Prominent suspects like O. J. Simpson and South Carolina mother Susan Smith get top-flight lawyering, and other defendants get good-quality help from public defenders. But many court-appointed attorneys lack competence, resources or both. Citing several states that allow private lawyers only $2,000 in public funds to prepare for trial, the Washington-based Death Penalty Information Center says that an attorney "diligent enough to put in the 500 to 1,000 hours" often needed in capital cases must work below minimum wage.

 

A crime's location and the quality of available lawyers nearby can have life-or-death consequences. A North Carolina man with an IQ of 70 was sentenced to death for killing a night watchman with his own clock, an unpremeditated act. "A more-zealous attorney could have avoided the death penalty," argues William Massengale, a Chapel Hill lawyer working on the man's appeal. "It's profoundly unfair that the selection of your lawyer may determine your fate."

 

Congress lowered the odds for many on death row this year when it halted funds for legal aid centers in 20 states that help death-row inmates. Republicans complain that the units unnecessarily prolong appeals. The federal judiciary disagrees: Judges predict that the cut will delay rather than speed cases.

 

The ultimate risk is that innocent people will be executed. In the past two decades, 59 death row inmates have been freed after establishing their innocence. Last year, Rolando Cruz escaped a death sentence for murdering a 10-year-old girl in Chicago after another man confessed. Also in Illinois, a death-row convict and two other men were released last month after Northwestern University journalism students discovered DNA and other evidence exonerating them in the murder of a couple.

 

Death penalty advocates say 1996 will be a year of one step forward, two steps back. The setback, ironically, stems from a new federal crackdown on sometimes repetitive appeals under a doctrine called habeas corpus that allows state prisoners to file federal lawsuits challenging their convictions. Conservatives long have complained that federal judges second-guess their state colleagues and overturn convictions long after trials are over. After a decade-long debate, Congress this spring required inmates to file habeas corpus cases within a year of their convictions and limited federal judges' powers of review.

 

Lawmakers and prosecutors were ecstatic about the legislation, but their enthusiasm may be short lived. Even if the new law eventually helps streamline the process, it includes so many debatable provisions that, for now, it is likely to have the perverse effect of delaying executions rather than expediting them.

 

High-court concern. A key section, for example, instructs federal judges to limit reviews of state cases to a few significant categories, such as inmates who have fresh evidence of their innocence. But Congress barred appeals to the Supreme Court, a clause that prompted the high court to hold a rare special hearing a few weeks after the new law went on the books. The case was brought by Ellis Wayne Felker, who was convicted in the 1981 rape and murder of a Georgia college student. Felker, who claims he is innocent, lost one habeas appeal but argues that he has the right to file another.

 

Felker lost his own case, but last week the justices ruled that convicts may still ask them to review habeas petitions. The decision, however, is only the opening shot in a long battle over the new law. Opponents, who maintain that it wrongly tries to prevent the federal courts from enforcing a right enshrined in the Constitution, vow to file new challenges that could delay many executions for years.

 

Capital punishment's champions insist that the legal system is improving. The death chamber increasingly is reserved for "the baddest of the bad," says Carolyn Snurkowski, a Florida assistant attorney general who heads a national group of death-penalty prosecutors. "We bend over backward to find any aspect of a defendant's life that might mitigate the case for execution." Such intensified scrutiny helps explain why so few death-row inmates are executed. But given the varied ways capital cases snake through state and federal courts, the death penalty is likely to continue to be about as predictable as lightning strikes.

 

BY TED GEST

 

ON DEATH ROW, RACE REALLY DOES MATTER

Of the 3,122 on death row, whites and minorities are represented almost equally:

White: 1,493 (48%)

Black: 1,272 (41%)

Latino: 236(8%)

 

Although whites are victims in less than half of murders overall, most of those executed in the past two decades killed whites:

White defendant, white victim: 256 (57%)

Black defendant, white victim: 101 (23%)

White defendant, black victim: 5(1%)

Black defendant, black victim: 51 (11%)

 

Southern states have executed the most convicts since the Supreme Court allowed capital punishment to resume in 1976. Courts in these states are able to find only poorly paid lawyers for many defendants.

Texas: 106

Florida: 36

Virginia: 31

Louisiana: 23

Georgia: 20

Missouri: 19

Alabama: 13

Arkansas: 11

 

18 other states have executed 8 or fewer prisoners.

 

USN&WR--Basic data: NAACP Legal Defense and Educational Fund

 

 

 

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