FOR THE SECOND year in a row, U.S. executions declined - to 66 from a
recent high of 99 in 1999 - but death row's two most notorious
inmates were removed. The federal government performed its first execution in decades on Timothy McVeigh for his domestic terrorism in the Oklahoma City bombing. And a judge
removed former Black Panther Mumia Abu-Jamal from death row because of concerns about ambiguous jury instructions, although he
upheld Abu-Jamal's conviction for the 1981 shooting of a Philadelphia police officer.
Abu-Jamal's case embodies all that's wrong with the death penalty for both sides of the issue. Supporters see Abu-Jamal as
wrongly convicted, an all too frequent
occurrence fueling support for a moratorium on executions endorsed by Supreme Court Justice
Ginsburg. [Justice Sandra Day O'Connor said that "the system may well be allowing some
innocent defendants to be executed," but she does not endorse a moratorium on executions.] Abu-Jamal's
supporters see the black activist (who has no previous arrests for violence) as a symbol of racial oppression, an
articulate defendant personifying the
statistics that blacks make up 11 percent of the population, 46 percent of prisoners and 54 percent on death
row.
The other side sees a man convicted of killing a police officer, of standing over the fallen officer and shooting him four times at close range in the head and body.
After two decades and two execution dates, Abu-Jamal is not just alive but still filing appeals. The latest series of four appeals leading to
the recent ruling raised 29 issues and, with response briefs, generated an 800-page file (plus a trial transcript and a variety of other court opinions)
requiring a 272-page judicial
response.
For people not solidly in either camp, what's disturbing is that the judge found two important potential problems in Abu-Jamal's proceedings: the number of
prospective black jurors excluded by the prosecution and ambiguous instructions to the jury about the factors they could consider. The
case is a reminder that society still needs to scrutinize the role of race in executions and be vigilant about apparent "details" if the state is to play God with people's lives. For all the people who felt
more comfortable with the death penalty following McVeigh's execution, the decision in Abu-Jamal's case is a reminder about the difficulty of setting up a system that
consistently delivers factually guilty people who deserve to die.
In the 1972 case of Furman
v Georgia, the Supreme Court halted executions because it found that death sentences were arbitrarily administered, which arose from jurors facing the decision of
whether to acquit or execute. Trials then became split into a guilt phase followed by a sentencing hearing, where jurors receive instructions about pre-determined
aggravating and mitigating circumstances plus a worksheet form to structure decision-making. Imagine
that the jury form for death sentences was only slightly better than the
butterfly ballot that lead many Florida Jews to vote for Buchanan.
Abu-Jamal's case involved the claim that the instructions Pennsylvania uses in all its capital cases are ambiguous and could lead to jurors failing to consider important
evidence related to mitigating factors. Jurors are told the decision for death must be unanimous and this implies that they must also be unanimous about the presence
of a mitigating factor to record it in the worksheet form and give it further weight. In U.S. District Judge William Yohn's words, the "temporal proximity" of the words
created a "reasonable likelihood" that relevant evidence would be excluded. A life hung in the balance of a word game played by lawyers about the
"linguistically plausible conclusion" from the jury instructions and a form.
In another recent case, the Supreme Court struck down a sentence when jurors were not told that the alternative to death was life imprisonment without parole - an
obviously important piece of information that several states fought to exclude. With executions, details seemingly matter, but courts also find that having an
attorney
who was asleep in court did not void a death sentence unless he slept through important parts of the trial. Supreme Court Justice Antonin Scalia went so far as to
state that "mere factual innocence is no reason not to carry out a death sentence properly reached."
It's understandable that the late Justice Harry Blackmun, shortly before his retirement in 1994, wrote a dissenting opinion saying that, although he had voted for more
than 20 years to uphold the death penalty, he would do so no more. "From this day forward, I no longer shall tinker with the machinery of
death," Blackmun wrote in
the case of a Texas convict whose death sentence was upheld by the Supreme Court's majority. The death penalty has to be imposed fairly and consistently or not at
all, and Blackmun concluded fairness was not going to happen: "Rather than continue to coddle the Court's delusion that the desired level of fairness has been
achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." Twenty
years of work and "the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake." Blackmun noted: "The basic question - does the system
accurately and consistently determine which defendants 'deserve' to die? - cannot be answered in the affirmative."
At the practical level, Abu-Jamal's death sentence becomes life imprisonment without parole unless the district attorney starts another sentencing hearing within 180 days of the Dec. 18 decision in his case - a difficult task after 20 years. A court has refused to grant him a new trial on the question of discrimination in excluding black jurors, so he sits in prison indefinitely – perhaps wrongfully convicted, but no longer in the national spotlight because the drama of a death sentence is gone. The risk, though, is that people will see his release from death row as an indication that the system worked, rather than additional evidence that the death penalty experiment has failed miserably; that it will coddle the delusion of fairness rather than the understanding that the machinery of death will never be fair, accurate and cheap.
