An ideological odyssey: evolution of a reformer.

• Author: Warden, Rob
• Position: Introduction through The Dowaliby Case, p. 757-784 - Symposium on the Center on Wrongful Convictions

INTRODUCTION

When the U.S. Supreme Court narrowly and temporarily struck down the death penalty in Furman v. Georgia in 1972, holding that its arbitrary imposition amounted to cruel and unusual punishment, (1) Justice Thurgood Marshall theorized in a concurring opinion that the average citizen, if fully informed of the realities of capital punishment, would "find it shocking to his conscience and sense of justice." (2) The majority's reasoning resonated with me--as Justice Potter Stewart put it, the death penalty was "so wantonly and freakishly imposed" that it was "cruel and unusual in the same way that being struck by lightning is cruel and unusual" (3)--but Marshall's thesis did not.

Growing up in Carthage, Missouri, my view of capital punishment had been all-but-indelibly forged by the crimes of William E. (Billy) Cook Jr., from nearby Joplin. (4) In December 1950, shortly after my tenth birthday, Cook abducted and murdered a family of five and dumped their bodies into an abandoned mineshaft. (5) He escaped the death penalty for those murders, (6) but not for a sixth, which he had committed several days later in California. When he gasped his last breath in the San Quentin gas chamber on December 12, 1952, (7) it seemed just deserts, pure and simple.

Two decades later, Furman brought back memories not just of Cook, but also of an infamous case I had covered as a reporter at the Chicago Daily News in 1966: Richard Speck's murders of eight young women in a townhouse on the city's far south side. (8) It seemed a shame that, among the some 600 death sentences around the country wiped out by Furman, (9) an exception had not somehow been made for Speck. (10)

The criminal justice system's propensity for error barely registered with me at the time, even though I was aware of the wrongful conviction of a man named Lloyd Eldon Miller Jr., who had come within eight hours of execution for the murder of an eight-year-old girl in Hancock County, Illinois, in 1955. (11) Miller was saved by a volunteer lawyer who discovered, among a considerable body of exculpatory evidence, that what a state forensic analyst had testified was blood of the victim's type on a pair of jockey shorts presumed to be Miller's actually was paint. (12) The U.S. Supreme Court unanimously reversed Miller's conviction in 1967--declaring that the prosecution had "deliberately misrepresented the truth." (13) The charges against Miller were dropped in 1971. (14)

It occurred to one of my editors at the Daily News that a system capable of making an error of the magnitude of the one that had been made in the Miller case must have made even worse mistakes. I was assigned to write a sidebar on wrongful executions. After a couple of days of research at several libraries and a number of interviews with legal experts, however, I had not found a single case anywhere in the country in which an executed person's innocence had been proven. (15) I did find several cases in which executions had been carried out on flimsy evidence (16) and several others in which wrongfully condemned defendants had survived near-death experiences like Miller's. (17) These cases were not of interest to my editors, however, and I did not write the envisioned sidebar. (18)

Nor did I mentally connect the wrongful conviction cases with the larger issue of whether capital punishment itself was justified. Basically, I assumed that the cases I identified were mere anomalies in a well-functioning system under which thousands of doubtlessly deserved executions had been carried out. (19) Not questioning the conventional wisdom that the death penalty deterred crime, I saw no reason that, with safeguards against arbitrary imposition, it should not be restored--a sentiment shared by substantial majorities of Americans. (20) Little wonder, in coming years, that the legislatures of thirty-eight states enacted new death penalty laws ostensibly correcting the constitutional infirmities of the previous ones. (21)

It took Illinois longer than most states to reinstate capital punishment, (22) but the new, supposedly improved Illinois death penalty was in place in 1978 (23) when authorities unearthed the bodies of thirty-two young men and boys from the crawl space beneath the home of John Wayne Gacy, a suburban Chicago building contractor whose case I covered for the Washington Post, (24) When Gacy was sentenced to death, (25) he--like Cook and Speck--was simply more of what I saw as the unobjectionable reality of capital punishment.

My view changed rather abruptly in the early 1980s when, as editor of Chicago Lawyer, a monthly journal launched by the Chicago Council of Lawyers, (26) my staff and I began investigating wrongful convictions and discovered the realities to which Justice Marshall referred. (27) Weighing the pros and cons of capital punishment, I came to regret that my revulsion to the unspeakable acts of Cook, Speck, and Gacy had blinded me earlier to a rational assessment of the death penalty.

The ledger was one-sided--worse than one-sided, really: There was, to my mind at least, not a single discernible benefit in having the death penalty--other than mollifying a visceral urge for revenge. During the ensuing decades, the factors that led to my epiphany grew in strength and number--converting scores of officials who formerly supported the death penalty into, like me, testaments to the Marshall thesis, (28) culminating in abolition of the death penalty in Illinois, (29) New York, (30) New Jersey, (31) New Mexico, (32) Connecticut, (33) Maryland, (34) and Nebraska. (35)

AMONG THE FACTORS:

The smattering of wrongful death sentences that I had run across in search of erroneous executions in the 1970s cannot be dismissed as anomalies in an otherwise well-functioning and well-intentioned system of justice. The system has condemned scores of innocent defendants whose executions often were averted only by serendipitous discovery of exculpatory new evidence--opening the overwhelming, unanswerable question of how many others were condemned on evidence of the same quality but not exonerated. (36) Stunningly, of some 300 defendants sentenced to death in Illinois after Furman, twenty death row prisoners were exonerated. (37)

The death penalty has no demonstrable deterrent effect. If it did, it would follow that having it would result in lower murder rates, but studies spanning more than a century and a half have found the opposite to be true. (38) The studies have consistently shown that proportionately fewer murders occur in states that do not have the death penalty than in states that do (39) and, in the latter, that murder rates increase after highly publicized executions. (40)

There can be no doubt that innocent persons have been executed under post -Furman laws--despite Supreme Court Justice Antonin Scalia's assertion in 2006 that there had not been "a single case--not one--in which it is clear that a person was executed for a crime he did not commit." (41) The most famous example is Cameron Todd Willingham, whose case was brought to light in 2004 as a result of dogged reporting by Chicago Tribune reporters Steve Mills and Maurice Possley. (42)

The death penalty system continues to suffer from what Supreme Court Justice Harry A. Blackman deemed "the virus of racism." (43) Fifteen years after Furman, the Court erected an insurmountable barrier to challenging death sentences for racial bias (44)--holding five-four that, despite a thoroughly documented disparity in the imposition of death sentences in Georgia based on the race of murder victims, (45) an African American on death row was not entitled to relief absent proof that discriminatory intent affected his specific case. (46) Years later, Justice Lewis F. Powell Jr., the author of the majority opinion in the case, expressed regret, going so far as to say that he would like to abolish the death penalty altogether, (47) but by then it was too late to help the defendant, Warren McCleskey, who had been executed. (48) Under the Illinois post-Furman law, when McCleskey came down in 1991, only three whites had been convicted of killing blacks, while more than ten times as many blacks had been convicted of killing whites (49)--and the white-on-black murders were extraordinarily heinous (50) compared with black-on-white ones. (51)

The distinction between a capital and a non-capital case often is nothing more than an accident of time or geography. Gacy, for example, would not have been eligible for the death penalty either if his last known murder had occurred eighteen months earlier, before the Illinois post-Furman law went into effect, (52) or if his murders had occurred in Iowa, which abolished the death penalty in 1965 (53) and where he had been convicted of sodomy in 1968 before moving to Chicago. (54) Conversely, just as geography worked against Gacy, (55) it took a death sentence off the table for Jeffrey Dahmer, who murdered seventeen young men between 1978 and 1991 and kept some of their heads and torsos in a refrigerator at his Milwaukee apartment. (56) Had Dahmer committed the murders in Chicago, where he picked up three of his victims, he would have been a prime candidate for a death sentence. Wisconsin, however, had abolished the death penalty in 1853. (57)

Counterintuitive though it may be, the death penalty is far more expensive than life in prison. In Illinois, where the General Assembly established a Capital Litigation Trust Fund in 2000 to defray costs of investigations by both the prosecution and defense into aggravating and mitigating evidence in potential death penalty cases, $122 million was spent through 2009--a period during which only seventeen death sentences were imposed and there were no executions. (58) In Maryland, a 2008 study found that the cost of each capital case exceeded the cost of a comparable noncapital murder case by $1.9 million, not counting costs of cases in which the death penalty was sought but...