Tacoma News Tribune
By Judith Kay (Former WCADP Steering Committee Member)

In our challenging world, it can be tempting to reduce moral complexity by asserting that a single moral principle such as truth-telling or the sacredness of human life ought to prevail over all norms. But the art of moral living in an imperfect world involves discerning how to balance competing moral commitments.

The News Tribune, in a Sept. 28 editorial, endorsed the state Supreme Court’s decision to uphold the death sentence for multiple murderer Robert Yates on the grounds of retribution.

“If anyone deserves it, Yates does,” the editorial claimed.

Yet, there are norms that compete with retribution and place caps on how much punishment we should exact.

If retribution alone were used as a moral guide, then some readers could conclude that executing Yates is too soft. He should, they reason, be made to suffer like his 11 terrified and innocent victims. Perhaps, they might say, we should chop off 11 of Yates’ appendages in an effort to satisfy “like for like.”

The principle of retribution – giving people what they deserve – has a secure place in our criminal justice system. But it is not the only principle in that system. American legislators and courts have argued wisely that retribution should be balanced against other moral duties.

Our courts don’t indulge strict retribution’s high demand for “tit for tat” because they also honor the prohibition of cruel and unusual punishment. This moral principle places limits on how severely we may punish someone. We need not meet the full demand of “like for like” in order to ensure that justice is served.

What other principles limit retribution in addition to the prohibition of cruelty?

We have a duty not to degrade punishers. Such degradation can occur if we force them to engage in actions that the community deems reprehensible. This is why we do not require punishers to rape the rapist or mug the mugger. Concern for the dignity and moral character of punishers establishes additional limits on what kinds of punishment society may inflict.

Donald Cabana, a former prison warden from Mississippi, has written powerfully in “Death at Midnight: The Confession of an Executioner,” about the negative moral and psychological effects of killing a fellow human, no matter how much the prisoner may have deserved it. (When cruel and sadistic people volunteer to pull the switch, my point is underscored.)

We recognize during war that citizens will be called upon to kill others; the cost to their psyches is part of their sacrifice, which is one reason we honor veterans so highly.

By giving Yates a less than the full punishment demanded by strict equality, we can prevent moral and psychic damage to the execution team.

Eleven life sentences sustain our commitments to retributive justice, the prohibition of cruelty and the refusal to harm the punisher.

A third competing and relevant moral principle is justice to others. Many Americans value economic justice and regret existing vast inequalities in wealth. Yet few Americans support the idea of robbing the rich to give to the poor, because they want to be fair to the claims of everyone, not just the poor.

Likewise, justice to others places limits on maximal retributive justice. Continued pursuit of executing Yates requires that large sums be dedicated to punishing this one individual.

Many studies have shown that life without parole is cheaper than pursuing a death sentence. Saved monies could be used to meet the needs of victims’ families or to prevent crime. Life sentences respect retribution while honoring the “just deserts” of others.

Finally, as a community, we seek to honor the dignity of the victims and their surviving families. We should not expect an execution to fulfill our duties to surviving families. A death sentence keeps families in limbo and turmoil while Yates’ appeals go through the necessary procedures in ensure fairness.

With multiple life sentences, survivors could rest assured that Yates would be locked away forever, while they move forward with their lives. Monies saved could be put into a fund for victims’ families for health care, counseling and education.

Singling out a single moral principle such as strict retribution may be more about us wanting to feel good than about experiencing the tensions that come from honoring all our moral commitments.

Judith W. Kay is associate professor of ethics in the religion department at the University of Puget Sound.

Originally published: October 14th, 2007 01:25 AM (PDT)

ABA Study: State Death Penalty Systems Deeply Flawed

Based on Multi-state Findings, Bar Association Renews Call for Nationwide Moratorium on Executions

WASHINGTON, D.C., Oct. 29, 2007— The American Bar Association today released the findings from their three-year study on state death penalty systems and called for a nationwide moratorium on executions. Based on a detailed analysis of death penalty systems in eight sample states, the ABA Death Penalty Moratorium Implementation Project identified key problems common to the states studied, including major racial disparities, inadequate indigent defense services and irregular clemency review processes – making their death penalty systems operate unfairly.
 
“After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed,” said Stephen F. Hanlon, chair of the ABA Death Penalty Moratorium Implementation Project.  “The death penalty system is rife with irregularity – supporting the need for a moratorium until states can ensure fairness and accuracy.”
 
While the ABA takes no position for or against the death penalty itself, since 1997 it has urged a moratorium in each jurisdiction that provides for capital punishment until the state conducts a thorough and exhaustive study to determine whether its system meets legal standards for fairness and due process. 
 
For the past three years, teams of local legal experts have assessed their states using 93 protocols developed by the ABA as measuring points of the due process and fairness the state provides.  The protocols have not been adopted as ABA policy, but are based on association policies calling for due process and fairness.
 
Of the eight state teams, five urged their own governmental leaders to impose a temporary halt on executions within the state until more complete analyses could be completed.  The five states were Alabama, Georgia, Indiana, Ohio and Tennessee.  Arizona, Florida and Pennsylvania's teams did not call for moratoria.

Several serious problems were found in many of the states:

• Every state studied appears to have significant racial disparities in imposing the death penalty, particularly associated with the race of the victim, but little has been done to rectify the problem.
• Judicial elections mean that electoral pressures may influence judicial decisions, and candidates for judges in many states discuss their views of the death penalty during campaigns. 
• States often do not have policies in place to ensure that lawyers representing people with mental retardation or mental illness fully appreciate the significance of their clients’ mental disabilities.  And states do not formally commute death sentences when an inmate is found incompetent, and they do not require instruction of jurors on the distinction between insanity as a defense and reliance on a mental disorder or disability to mitigate sentencing. 
• In clemency proceedings, most states fail to specify the type or breadth of review, or to require the clemency decisionmaker to explain reasons for their decisions.
• Most states have had at least one serious incident of mistakes or fraud in crime laboratories.  They often do not require that crime laboratories and medical examiner offices be accredited, or that crime laboratories make their standards and procedures public.  The laboratories are often seriously underfunded and do not use the most sophisticated testing procedures.
• With respect to collection, preservation and testing of biological evidence, most states do not require preservation of the evidence through the entire legal process until the accused is either released from prison or executed.  As scientific testing capability advances, evidence that could prove innocence may be destroyed.  Testing statutes create onerous procedural hurdles impeding the ability of convicted persons to file for and obtain DNA testing.
• States do not require law enforcement agencies to adopt procedures comporting with national best practices on identification and interrogation, and most states do not require law enforcement agencies to videotape or audiotape custodial interrogations in murder cases.
• States are not establishing policies or requiring prosecutors' offices to establish policies on exercise of prosecutorial discretion, or on evaluating cases that rely on evidence such as testimony of jailhouse snitches, or on eyewitness identification or confessions, considered as less reliable evidence.  Many states don’t require specialized training for capital cases, and most states have not disciplined the prosecutors even when serious misconduct has been found.
• Some states fail to provide for appointment of defense counsel in post-conviction proceedings, and all states fail to provide for appointment of counsel in clemency proceedings.  Capital indigent defense is generally significantly underfunded, and compensation paid to appointed capital defense attorneys is often inadequate.  Many states require only minimal training and experience for defense counsel in capital cases.
• Some states do not require a meaningful proportionality review to determine whether death sentences are imposed on similarly situated defendants and few, if any, maintain databases adequate to achieve such a review. 
• With respect to post-conviction review, many states provide unreasonably short time periods in which to petition the courts for review, and most states allow judges in such proceedings to adopt findings of fact and conclusions of law proposed by one party, potentially undermining the judge’s exercise of independent judgment.  Some states assign post-conviction review of whether errors were made at trial to the same judge who presided at trial, and many states make it difficult to obtain discovery, or evidentiary hearings.
• Jury instructions often are poorly written and poorly conveyed, making it difficult for jurors to understand their roles and responsibilities.  States often fail to provide instructions in writing, and instructions fail to define important terms, or to tell jurors that they may impose life sentences even if there are no mitigating factors or where aggravating factors are proven beyond a reasonable doubt.

The teams researched 12 areas:  collection, preservation and testing of biological evidence; law enforcement identification and interrogation procedures; crime laboratory and medical examiner office standards and procedures; prosecutorial professionalism; defense services; direct appeals; state post-conviction proceedings; clemency; jury instructions; judicial independence; treatment of racial and ethnic minorities; and mental retardation and mental illness.
 
With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The Washington State Supreme Court chose today, the day before Thanksgiving, to uphold the death sentence of Clark Elmore.  Elmore is the third defendant to have his case denied in fairly quick succession by the Washington State Supreme Court over the past few months.   While we were hopeful that dissenting language in the 5 to 4 ruling in Davya Cross' case might herald a more thoughtful court with respect to this issue, they instead seem to have taken a hard turn against death penalty petitioners with two consecutive 6 to 1 rulings.  (The other case also denied recently was that of Darold Yates.) 

More news on Elmore's appeal will follow.

The Catholic Review
By George P. Matysek Jr.
11/13/2007

HOMELAND, Md. (The Catholic Review) - When police arrested the serial rapist who brutally assaulted and murdered Shannon Schieber in 1998, the Schieber family faced unrelenting pressure to seek the death penalty.

The district attorney, prosecutors, members of the media and others in Philadelphia assured Shannon’s parents that putting their 23-year-old daughter’s killer to death was the only way to serve justice and bring them “a sense of closure.” Some even implied that failing to pursue the death penalty was a sign they didn’t really love their daughter.

Reflecting back on those heart-wrenching days, Vicki Schieber, Shannon’s mother, said her family was “re-victimized” by the debate surrounding the death penalty. Knowing the Catholic values her daughter embraced, Mrs. Schieber said there was no way she could demand the taking of another life. “The death penalty wasn’t going to honor Shannon’s life and it wasn’t going to bring her back,” said Mrs. Schieber, a parishioner of Blessed Sacrament in Washington, D.C., who spoke at a Nov. 7 forum on the death penalty sponsored by the archdiocesan respect life office at the Cathedral of Mary Our Queen in Homeland.

“I thought about everything we ever taught Shannon to believe — to turn the other cheek, to show compassion and to be forgiving,” Mrs. Schieber said. “If you have a set of principles and then don’t live by them when you are tested, were they ever your principles to begin with?”

Mrs. Schieber’s request for a sentence of life without parole was ultimately given to Troy Graves, who also pleaded guilty to 13 other sexual assault in two states.

What Shannon would have wanted

Mrs. Schieber said it wasn’t an easy decision. She and her family struggled with tremendous anger that someone would snuff out the life of a daughter she described as the “joy of our lives.”

Shannon was gifted “beyond belief,” according to her mother. At 18 months, she was already reciting the alphabet — forward and backward. By the time she was 3, she was reading at a second-grade level. In school, Shannon earned top grades, serving as president of her high school and president of her freshman class at Duke University, where she graduated in three years with a triple major in mathematics, economics and philosophy.

Shannon was also very committed to social justice. She earned a full scholarship at the prestigious Wharton School at the University of Pennsylvania, Philadelphia — not with the intent of making boatloads of money for herself, Mrs. Schieber said, but to have a successful career in finance so she could help the poor.

“After her death, Shannon was sitting on my shoulder, telling me, ‘Don’t let him kill all of you, too,” said Mrs. Schieber. “She was telling me to take all that energy and do good with it.”

To pursue the death penalty would have put her on the same footing as the murderer himself by being willing to take a life to satisfy one’s own ends, Mrs. Schieber said.

’No such thing as closure’

It is wrong to suggest that executing people brings a sense of closure, according to Mrs. Schieber. Every time she sees a beautiful young family in church, she is reminded that her daughter will never have the chance to marry and raise a family of her own. Even if the killer were executed, those reminders will persist throughout her life, Mrs. Schieber said.

“There is no such thing as closure when a violent crime rips away someone you love,” she said.

Mrs. Schieber pointed out that the death penalty is a human institution and subject to mistakes. More than 120 people have been exonerated for murders they did not commit, she said. At a practical level, the death penalty is also a waste of money, according to Mrs. Schieber. Sustaining the death penalty infrastructure and appeals process costs millions of dollars per case, she said. “It only costs about $50,000 (annually) to keep my daughter’s murderer in prison,” she said.

As the Maryland General Assembly is expected to debate a bill replacing the death penalty with sentences of life without parole, Mrs. Schieber urged Catholics to sign petitions in support of the effort to help convince lawmakers to support a culture of life.

“All life is sacred,” she said.

By Jeremy W. Peters, the New York Times
December 10, 2007

TRENTON, Dec. 7 — So remorseless was Ambrose A. Harris for raping and shooting a young Pennsylvania woman in the back of the head that he mockingly dabbed his eyes with a handkerchief as the victim’s father sobbed on the witness stand.

In 1996, a Superior Court jury sentenced Mr. Harris to die for that crime, but not before he could kill again. As he awaited the outcome of an appeal, he flattened another death row inmate’s skull by climbing on top of a stool and jumping down on the man’s head over and over until he was sure the job was finished.

For many, there is little question that Mr. Harris, 55, represents the worst that human nature is capable of — an impenitent killer who seemed to revel in the pain he inflicted.

Yet like so many violent criminals, Mr. Harris is the product of a turbulent upbringing. According to court testimony, his mother, recalling once to a social worker how she never wanted children, said that the doctor who delivered Ambrose had to throw water in her face to force her to push during labor.

When Mr. Harris was a boy of 12 growing up in Trenton, he was committed to a state mental hospital for more than a year. Doctors noted then that he was “violent and homicidal,” with an I.Q. of only 78.

As the New Jersey Legislature prepares to decide this week whether to become the first state to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976, Mr. Harris’s case renews focus on issues of justice and morality in the debate over capital punishment.

When advocates of capital punishment in New Jersey, where no one has been executed since 1963, make their case, they often point to Mr. Harris as the type of a killer whose life would be spared if the death penalty were eliminated.

But opponents of executions contend that cases like Mr. Harris’s show that questions about good and evil and life and death are too complex to be settled by a judge or a jury.

“This is God’s domain,” said Sister Elizabeth Gnam, who has counseled prisoners for 19 years at the New Jersey State Prison here, where the state’s death row is housed. “They’re human beings. And because they were given the gift of life, I don’t feel it’s our responsibility or even our right to judge that life is over for them.”

Mr. Harris is hardly the only inmate on New Jersey’s death row with mental and physical scars from childhood.

Lawyers for Jesse Timmendequas, whose rape and murder of Megan Kanka, 7, led to Megan’s Law, which requires community notification when a convicted sex offender moves into an area, said that abuse at the hands of Mr. Timmendequas’s mother started in the womb. She drank so much during pregnancy that Mr. Timmendequas was born with fetal alcohol syndrome. Life did not get much better after that. His father later beat and raped him, lawyers said.

Brian P. Wakefield, who killed an elderly couple in 2001 while robbing their home, started a life of crime early. According to testimony at his trial, his mother taught her children how to shoplift. And physical abuse was meted out by Mr. Wakefield’s drug-addicted father, who beat his son with an extension cord.

Of all the arguments against capital punishment — that too many innocent people have been exonerated, that it is costly and ineffective, that it is biased against minorities and the poor — the argument that even the most vile killers deserve some pity because they are human is the hardest to sell.

“I don’t try to make that argument,” said Senator Raymond J. Lesniak, Democrat of Union County and a sponsor of the bill to abolish capital punishment in New Jersey. “It’s tough because passions run really high when you have very heinous, horrible acts.”

Death penalty proponents say they believe that examples of crimes like Mr. Harris’s and Mr. Timmendequas’s are some of their most persuasive arguments. “If you asked the question, Does somebody who rapes and murders a kid, and then taunts the family at trial, deserve to die?, my guess is you’d find about 90 percent of the citizens of New Jersey would say yes,” said Robert Blecker, a law professor at New York Law School who has argued for keeping New Jersey’s death penalty in place.

On the morning of Dec. 17, 1992, Mr. Harris went looking for a car to use in a robbery. It was raining, and according to testimony at his trial, he did not want to ride his bike. So he carjacked a red Toyota belonging to Kristin Huggins, 22, who had driven to Trenton to paint a mural at the Trenton Club, a private social club a few blocks from the State Capitol.

He forced Ms. Huggins into the trunk, letting her out only to rape her and then shoot her. He dumped her body in a shallow grave under a bridge.

Despite all the publicity that has surrounded the case, the Huggins family has remained private, saying little publicly about the murder or what punishment they think Mr. Harris deserves. Reached by telephone, Ms. Huggins’s brother, James, said that he supported the death penalty but declined to say anything about Mr. Harris.

Mr. Harris had a violent past. Medical records indicate that he had scars all over his body at a young age, the result of abuse and neglect by his mother, Mattie Williams, who he complained beat him. Ms. Williams herself spent time in prison for murder. When he was 4, he was struck by a car while he walked by himself to his grandparents’ home. His mother later told a social worker that she had been unaware that a 4-year-old should not walk down the street alone, according to court testimony. Ms. Williams died in 2003.

The Department of Corrections denied a request from The New York Times to interview Mr. Harris from death row. Several attempts to interview him by telephone were unsuccessful.

By the time Mr. Harris was released from a state mental hospital at age 13, doctors had classified him as mentally retarded. A “certificate of insanity” signed by a doctor in 1964 described him as “a mental defective.”

From 1972, when he was 20, to 1992, when he murdered Ms. Huggins, he spent almost all of his time in prison for robbery and burglary convictions. His life on death row is hardly charmed, but it is more of a life than some would like to see him have.

The New Jersey State Prison authorities classify him as “noncongregate,” which means he is not allowed any contact with other prisoners. He eats alone in his tiny cell. When he is permitted recreation time, it is alone in a small, fenced-off area of a prison courtyard.

To allow Mr. Harris to mingle with other prisoners could have deadly consequences, as the state learned in 1999. One day when death row inmates were briefly moved to a recreation pen while their cells were being fumigated, Mr. Harris lunged at another death row inmate, Robert Simon, ultimately stomping him to death as stunned corrections officers scrambled to intervene.

Though his appeals go on, it seems that Mr. Harris will probably spend the rest of his days behind bars, even if the state’s death penalty is repealed. Last week, the New Jersey Supreme Court upheld his sentence.

The Bangkok Post
December 18, 2007

New York (dpa) - The UN General Assembly on Tuesday voted 104-54 to adopt a moratorium on the death penalty, defeating vocal opposition from countries that maintain the practice does not violate human rights.

Countries that favor ending the death penalty are a uniformed bloc, arguing the practice "undermines human dignity" and that a moratorium "contributes to the enhancement and progressive development of human rights."

"There is no conclusive evidence of the death penalty's deterrence value and that any miscarriage or failure of justice in the death penalty's implementation is irreversible and irreparable," the proponents said in the resolution adopted by the 192-nation assembly. There were 29 abstentions.

The resolution submitted by more than 90 countries, including most Europeans nations, voiced concern about the continued use of the death penalty and demanded that the UN "establish a moratorium on executions with a view to abolishing the death penalty."

It called on countries that still apply the death penalty to respect international standards that provide safeguards guaranteeing the rights of sentenced prisoners and to "progressively restrict the use of the death penalty and reduce the number of offences for which it may be imposed."

Countries that opposed the moratorium renewed their criticism before the vote, a replay of the debate last month in the human rights committee of the assembly. Opponents included the block of 13 Caribbean nations and others like Singapore, which accused Europeans of imposing their values on other sovereign nations.

There are 134 countries that have abolished the death penalty.

But countries that continue to use it, like the United States and China, have remained mostly silent during the whole debate.

Despite Washington's official stance on maintaining the death penalty, New Jersey on Monday became the first US state to abolish the sentence in more than 40 years, as Governor Jon Corzine signed into law a measure eliminating it.

New Jersey joined 13 other US states that do not allow executions.

"Today New Jersey evolves," Corzine, a Democrat, said in a statement. "This is a day of progress for us and for the millions of people across our nation and around the globe who reject the death penalty as a moral or practical response to the grievous, even heinous, crime of murder."

Before the final vote in the UN General Assembly Tuesday, the human rights committee voted 99-52, with 33 abstentions, last month to approve the moratorium, and sent the draft to the 192-nation assembly for a final vote.

The issue split the committee into two camps, with the Europeans, led by Italy, on one side against mostly small countries in the Caribbean, Africa and the Middle East that said the death penalty is not a human rights issue.