Developments on the Death Penalty During 1994

Introduction

The use of the death penalty in the USA is arbitrary, unfair and racially discriminatory despite the existence of elaborate judicial safeguards. It is cruel and serves no useful social purpose. Certain features of the USA's use of the death penalty violate internationally agreed human rights standards. Amnesty International has repeatedly urged the US authorities to stop executions and abolish the death penalty in law.

In 1972 the US Supreme Court struck down most US death penalty laws on grounds of unfairness. Since then new death penalty statutes written to conform to the Supreme Court guidelines have been introduced in 37 of the 50 US states, and in the federal jurisdiction. But the more than 250 executions carried out since 1977 under the new laws are replete with examples of unfairness and possible judicial errors.

In January 1994, Amnesty International called on the US Government to recognize its constitutional responsibility for ensuring equal protection of the law to all US citizens by establishing a Presidential Commission on the death penalty, with a moratorium on all executions until the Commission reports its findings. In an Open Letter to President Bill Clinton, Amnesty International said that such a study would serve to remove the issue of capital punishment from the political and emotional climate which presently surrounds it. The Commission's report and recommendations could provide officials, legislators and the public with an objective body of information to guide decisions on the issue. No substantive response to Amnesty International's 10,000-word Open Letter had been received by the end of 1994.

Developments on the death penalty monitored during 1994 provide further evidence that death sentences are imposed disproportionately on the poor, on minorities, on the mentally ill or retarded and on those without adequate legal counsel. At least two black prisoners executed during 1994 had been convicted and sentenced to death by all-white juries. In a third case, disturbing details of jury misinformation, misconduct and racial bias during the sentencing deliberations came to light shortly before the prisoner was executed; but the revelations were not deemed grounds for granting clemency.

Executive clemency was denied in a number of strongly deserving cases, including that of a Florida prisoner against whom there was little or no evidence of guilt. The two prosecutors at his trial, as well as the State's Attorney who had prosecuted the case on appeal, came forward to urge that he not be executed, but to no avail. However, clemency was granted to one prisoner in Virginia after DNA tests showed conclusively that he was not responsible for a rape which immediately preceded the murder of the victim. The man was mentally retarded and had been convicted and sentenced to death on the basis of a confession he gave to police.

Several prisoners executed during the year had presented clear signs of mental illness or mental retardation. One seriously mentally ill prisoner was permitted to waive his right to a trial by jury, dropped his appeals and asked to be executed. The state complied with his wishes, despite five psychiatric reports suggesting that he was not competent to make such a decision.

The federal government passed wide-ranging legislation which, among other things, permitted the death penalty as a possible penalty for more than 50 offenses committed under federal civilian law. Three states resumed executions after more than 30 years (Idaho, Maryland and Nebraska), and Kansas became the 37th state to reintroduce the death penalty onto its statute books. A total of 31 prisoners were executed in 12 states during the year. Once again, Texas led the league with 14 executions (see section on statistics at the end of this document).

Federal death penalty expanded

Legislation which authorizes the death penalty under federal (civilian) law for more than 50 new offenses was passed in August and signed by President Clinton on 13 September 1994. The 1994 Federal Death Penalty Act provides for the death penalty as a possible punishment for a range of crimes, mostly involving the murder of federal officials. It would also permit the death penalty for certain non-homicidal offenses such as the attempted assassination of the President, treason, espionage and major drug-trafficking.

US Attorney General Janet Reno welcomed the new legislation, claiming that it "will mean fewer victims, fewer tragedies, fewer lost lives."Amnesty International disagrees profoundly with her statement. There is no credible scientific evidence from the United States or elsewhere to suggest that the death penalty will deter crime more effectively than other punishments. The organization believes the US public was seriously misled by legislators, and by the President himself, who sought to present the bill as an effective anti-crime measure.

Amnesty International condemned this mammoth expansion of the federal death penalty, calling it a major set back for human rights in the USA. It is contrary to international human rights standards and treaties which encourage governments to restrict their use of the death penalty with a view to its ultimate abolition. The Human Rights Committee, established under the ICCPR, has stated that Article 6 of that treaty "refers generally to abolition [of the death penalty] in terms which strongly suggest ... that abolition is desirable."Article 4 (2) of the ACHR states: "In countries that have not abolished the death penalty ... its application shall not be extended to crimes to which it does not presently apply."

No prisoner has been executed under federal law since 1963. However, six prisoners were under sentence of death at the end of 1994, convicted under the Anti-Drug Abuse Act of 1988 for drug-related murders.

US Supreme Court Justices speak out against the death penalty

After more than 20 years of constitutional analysis, retiring Supreme Court Justice Harry A Blackmun concluded in a opinion published in February 1994 that the death penalty as currently administered in the USA is unconstitutional and "remains fraught with arbitrariness, discrimination, caprice and mistake."In a 7,000 word dissent to the Court's refusal to hear the appeal of Texas death row inmate Bruce Callins, Justice Blackmun reviewed the recent history of death penalty jurisprudence in the USA and outlined the reasoning which led him to conclude that contemporary legal standards have created "a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution."He stated, "Rather than continue to coddle the [Supreme] 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. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies," and "The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants."

Now 85, Justice Blackmun was appointed to the US Supreme Court in 1970. Long considered to be a conservative on law and order issues, his viewpoint on the death penalty reportedly began to shift after the Court rejected strong statistical evidence that Georgia's death penalty statute was racially discriminatory (McCleskey v. Kemp, 1986). Justice Blackmun now doubts that any new procedural rules could provide consistent and fair death sentences. He concluded, "I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness in the infliction of death is so plainly doomed to failure that it – and the death penalty – must be abandoned altogether...I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all." (Callins v. Collins, 22 February 1994)

Former US Supreme Court Justice Lewis F Powell also expressed second thoughts about the death penalty. In a new biography, Justice Powell reportedly said that, were he still a member of the Court he would now vote against the death penalty in all cases. "I have come to think that capital punishment should be abolished."[1] Like Justice Blackmun, Justice Powell now concludes that the death penalty cannot be decently administered and, as currently practised, brings the law itself into disrepute.

Asked if there was any case in which he wished he had voted differently, Justice Powell replied "Yes, McCleskey v. Kemp."In 1986 he cast the decisive fifth vote in favour of executing Warren McCleskey and wrote the Court's opinion in that case. McCleskey's lawyers had presented a highly detailed statistical study indicating that Georgia's courts were between four and 11 times more likely to condemn a convicted murderer to death if the victim was white rather than black. Justice Powell concedes that he did not know what to make of this finding. "My understanding of statistical analysis ranges from limited to zero."The state of Georgia had no answer to that evidence, but Justice Powell's opinion held that the statistics were irrelevant, and that Warren McCleskey must demonstrate that racial bias had operated in his particular case – an almost impossible burden of proof. Warren McCleskey was executed in Georgia on 25 September 1991.

Two decisions announced by the US Supreme Court in June suggested that a new, moderately conservative majority had emerged within the Court that is prepared to overturn death sentences, in keeping with the doctrine that, because "death is different," capital cases require particularly careful scrutiny. The Court also appears unwilling to cut back further on the federal habeas corpus appeals process in capital cases.

In Simmons v. South Carolina, announced on 17 June, the Court ruled that juries needed to be informed that life imprisonment without parole was the sentencing alternative available if they voted against a death sentence. By a vote of seven to two the Court invalidated Jonathan Simmons' death sentence because the prosecution and the judge at his trial had refused to tell the jury that if it chose a life term instead of a death sentence, Simmons would not have been eligible for parole. The jury's lack of full information had led to the "grievous misperception" that the only way to ensure that society was protected from Simmons' eventual release was to execute him. The trial judge had refused three requests from defence counsel for instructions on the parole eligibility issue, and also deflected a direct question from the obviously confused jurors.

The ruling will have repercussions for some death row inmates in Pennsylvania and Virginia as well as South Carolina. These are the only states which conceal from jurors the existence of a life-without-parole alternative to a death sentence.

In McFarland v. Scott, a Texas capital case, the Court ruled on 30 June that federal district court judges can postpone executions of prisoners who have exhausted their state appeals but have not yet found lawyers to file their petition for federal review of their cases. Frank McFarland came within hours of execution in November 1993 after his conviction was upheld by the Texas state courts. The federal courts had refused his request for a stay, saying they had no jurisdiction over any aspect of the case until he filed a habeas petition. McFarland argued that without a stay of execution he would die before he could find a lawyer to prepare a petition.

The ruling, on a vote of five to four, is likely to postpone the executions of many death row inmates across the country. In one of his final opinions before retiring from the Court, Justice Harry Blackmun wrote for the majority, "Criminal defendants are entitled by Federal law to challenge their conviction and sentence in habeas corpus proceedings... Federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty."

Clemency

In January 1994, just before leaving office, Virginia's governor, Douglas Wilder, granted a conditional pardon to death row inmate Earl Washington ; this intervention effectively commuted his death sentence to life imprisonment, with eventual parole eligibility. New DNA tests had revealed that Washington could not have committed the rape which immediately preceded the murder of 19-year-old Rebecca Williams in 1982. Washington was convicted on the basis of a confession he made to police, however there was substantial evidence that his statement was coerced. Washington is mentally retarded and highly suggestible, with the approximate mental development of a 10-year-old child.

Earl Washington's lawyer, Eric Freedman, welcomed the fact that his client no longer risked execution. But he strongly criticized Governor Wilder's unwillingness to admit that the legal system had failed and to grant Earl Washington a full pardon. "...The confession cannot be true if the DNA test results are correct – and the Governor did not question those results. There is no conceivable reason for Earl Washington, an innocent person, to spend the remainder of his life behind bars,"Freedman said.

Amnesty International continues to be deeply disturbed at the inadequacy of the executive clemency procedure in Texas. Under Texas rules, the governor may commute a death sentence only if she or he receives a favourable recommendation from a majority of the 18-member Board of Pardons and Paroles. Despite the fact that Texas has executed more prisoners than any other state (more than 80 between 1982 and the end of 1994), the Board has convened clemency hearings only very rarely and has not recommended in favour of commuting any death sentences over this period.

Robert Nelson Drew was executed in Texas on 2 August 1994 despite numerous appeals for clemency, including one from the governor of Vermont. He was sentenced to death in December 1983 for the murder of a white man, Jeffrey Mays, in February 1983. A second accused, Ernest Puralewski, was also convicted of the murder and sentenced to 60 years' imprisonment. Puralewski later came forward with a signed affidavit in which he stated that he alone had been responsible for the crime: "I am the person who murdered Jeffrey Mays and Robert Drew is innocent."Robert Drew's lawyers sought a new hearing so that this late evidence could be considered on its merits, but their requests were turned down.

Despite strong grounds for granting clemency to Harold 'Wili' Otey, he was executed in Nebraska on 2 September. Otey, black, was sentenced to death for the 1977 rape and murder of a white woman during a robbery at her home.

In a clemency petition in 1991 it was argued that, "by virtually every objective measure [Otey's case] is the least aggravated capital case to have completed the process of review in the Nebraska courts."Otey had no prior criminal record and had made substantial efforts towards his rehabilitation while in prison. In June 1991 the Nebraska Board of Pardons denied clemency by two votes to one. The Board member who voted in favour of clemency, Nebraska's Secretary of State, said "There are individuals in the institution convicted of multiple murders or even more heinous crimes than Otey who are serving life sentences."

Otey's attorneys challenged the composition of the Board of Pardons, whose members are the state Governor, the state Attorney General and the Secretary of State. Otey's clemency hearing was unfair, it was argued, because the Attorney General had a conflict of interest in the case. He had prosecuted the case on appeal, both personally and through his office, had opposed Otey's habeas corpus application, and had actively sought to expedite the execution. During the 1991 clemency hearing, members of the Attorney General's staff appeared before the Board to argue the case against clemency. The Attorney General, with the Governor, voted to deny clemency to Wili Otey.

Otey's final appeal to the US Supreme Court on this issue was refused review on 27 June 1994. Otey was the first prisoner to be executed in Nebraska in 35 years.

Risk of executing the innocent

In January 1994, Governor Mel Carnahan of Missouri took the unusual step of appointing a Board of Inquiry to investigate evidence not heard at the original trial of Lloyd Schlup which strongly suggested that he was innocent. Schlup was granted a stay of execution by Governor Carnahan on 18 November 1993, less than nine hours before he was to be executed. On 7 January 1994, Governor Carnahan named three retired circuit judges to form the Board of Inquiry. The Board had not reported its findings by the end of the year.

Meanwhile, the US Supreme Court agreed on 28 March to hear Lloyd Schlup's appeal after the Eighth Circuit Court of Appeals rejected his second habeas corpus petition by two votes to one. The dissenting judge on the Eighth Circuit panel, Judge Gerald W Heaney, called Lloyd Schlup's evidence of innocence "truly persuasive" and said, "If ever there were a case in which the Supreme Court might wish to clarify the law on this issue, this is the one."

The lack of clarity has arisen because the lower federal courts disagree as to how to define a miscarriage of justice in the context of a Federal court review of a death row inmate's claim of innocence. The Eighth Circuit used a definition that is extremely difficult to meet. It said an inmate must show by "clear and convincing evidence" that "no reasonable juror" would have found him eligible for the death penalty but for a constitutional error that occurred at the trial. By contrast, other federal courts have been willing to consider second petitions from inmates who can meet the easier standard of demonstrating "a colorable showing of factual innocence."The US Supreme Court will not weigh the facts of this case but will decide what legal standard a state prisoner must meet to qualify for a second chance at a federal court hearing through a petition for a writ of habeas corpus. There were subtle indications during the year that at least some members of the Court were concerned that the pendulum had swung too far in the direction of restricting access to the federal courts. The Court's ruling (Schlup v. Delo) will be announced at some point between January and June 1995.

Lloyd Schlup was convicted of participating in the murder of Arthur Dade, a fellow inmate at the Missouri State Penitentiary, who was killed in February 1984. Dade, who was black, was stabbed to death by three white inmates in a crowded cell block and there were many witnesses. Lloyd Schlup was convicted on the testimony of two guards, although new evidence suggests that one of them may not have been at the scene. More than 20 prisoners who witnessed the murder, including black inmates who were friends of the victim, have come forward with affidavits to state that Schlup was not involved or present at the scene. A prison surveillance videotape of the cafeteria showed Schlup standing first in line for lunch at about the time of the murder. The precise timing of events was ambiguous and the prosecution at Schlup's trial maintained that there was enough time for Schlup to have been in both places. But a former prison guard who was on duty near dining room that day, came forward in 1993 and pinpointed the timing of the tape. This indicates that Schlup could not have been at the crime scene.

Lloyd Schlup was the last of the three accused to be tried, yet his court-appointed lawyer did not take even the minimal steps necessary to call as defence witnesses several inmates who had already given evidence at the first two trials (including the other two accused themselves), who would have confirmed that Schlup was not involved. The new evidence indicative of his innocence began to be unearthed only in 1992 and 1993, after the case was taken over by lawyers at the Missouri Capital Punishment Resource Center.

In a letter to the Board of Inquiry into Lloyd Schlup's case, Amnesty International said it would be a grave violation of fundamental standards of decency and justice, as well as a violation of international standards, if Lloyd Schlup's execution were permitted to proceed. Safeguard 4 of the United Nations' ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, states: "Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts."

Roy Stewart was executed in Florida on 22 April 1994. He was convicted of the murder of a white woman, Margaret Haizlip, on the basis of a confession he allegedly made to police following his arrest in 1979. Roy Stewart had a long history of drug and alcohol abuse, with resulting brain damage and mental problems. Lawyers who represented him in his final appeals argued that Stewart's confession, made after six hours of interrogation and retracted at his trial, had been coerced and was highly unreliable because of his mental health problems.

Police originally identified Roy Stewart as a suspect in the murder investigation because of statements made by a Vanessa Brown. At his trial she testified that he had confessed the killing to her. But some years after the trial she admitted that her story was not true and was given for the sole purpose of avoiding a jail sentence herself for forgery and possession of marijuana. She was released from jail following her testimony at Stewart's trial and was reportedly also paid a cash reward for her false story.

Physical evidence presented at trial was inconsistent with Stewart's confession, and suggested that he was not the murderer. Ligature marks on the victim's neck were inconsistent with the confession and the testimony of experts presented at trial. Footprints found at the victim's home did not match the shoes Stewart was wearing.

Three State's attorneys who prosecuted Roy Stewart at trial and on appeal, later came forward opposing the execution for lack of evidence. Robert Godwin and Lance Stelzer, the trial prosecutors, and Calvin Fox, the Assistant Attorney General who prosecuted Stewart on appeal for more than seven years, wrote letters and made statements urging clemency, to no avail. Mr Fox, who came to know the case intimately, concluded that practically every point in the confession was inconsistent with the physical facts. "The description of the murder and the confession does not fit the actual facts concerning the death of the lady. The State completely botched the investigation of the scene. They threw away critical evidence. I came to learn...that they also had not pursued other defendants who had much more legitimate contact with the decedent than did Mr Stewart."

Roy Stewart was denied clemency in 1983. (In Florida, clemency applications are considered early on in the judicial process, after a death sentence has been confirmed on direct appeal by the Florida Supreme Court). At the time of his first clemency application, the above matters were unknown to his lawyers. Rules of procedure prevented the serious questions later raised about his guilt from being addressed on their merits by the courts. His lawyers on appeal therefore strongly urged the governor to convene a second clemency hearing to fully explore the issues raised. Instead, Governor Lawton Chiles signed a death warrant and allowed Roy Stewart's execution to proceed.

Joseph Burrows, who spent five years under sentence of death in Illinois, was released from prison in September after the main witnesses against him recanted their testimony and one confessed to the crime.

No physical evidence linked Mr Burrows to the crime. He was convicted on testimony from two witnesses who received lighter sentences in exchange for giving evidence. But in July, one witnesses confessed that she alone had killed the victim, William Dulin, in 1988, and the second witness recanted his testimony, saying he had been coerced by prosecutors and police officers. Mr Burrows contended that he was with friends, far away from the scene when Mr Dulin was murdered.

Racial discrimination

An amendment which would have permitted capital defendants to appeal against their death sentences on the grounds of racial bias, was dropped from the Federal Crime Bill during its passage through Congress. (The bill became law in September – see above).

The "Racial Justice Act" would have permitted death row inmates to challenge their sentence by showing a racial pattern in local capital sentences, which prosecutors would be required to explain. Some opponents of the amendment argued that it would effectively abolish capital punishment. "That is another way of saying that racial injustice inheres in the death penalty," commented a New York Times editorial.

Further evidence that this is indeed the case was provided by the staff of the House Judiciary Committee in Congress in March. They found that nine out of ten times the Justice Department had sought the death penalty under the 1988 Federal Anti-Drug Abuse Act, the defendant was black or Hispanic. The 1988 law had been invoked against 37 defendants, all but four of whom were black or Hispanic. This statistic was especially startling because, in recent years, three-quarters of all Federal drug trafficking defendants had been white. The US Attorney General approved ten of the death penalties imposed over the 12-month period to March 1994: all involved black defendants.

Amnesty International and others have long contended that the death penalty in the USA, as currently administered is fraught with racial discrimination. More than 40 per cent of death row prisoners are black, compared to 12 per cent of the population. However, the most marked disparities are based on the race of the victim: 84 per cent of prisoners executed since 1977 were convicted of murdering white victims – despite the fact that black and white people are murdered in roughly equal numbers across the country. Studies have shown that racial disparities in death sentencing remain after all legally relevant factors have been taken into account. Furthermore, many black prisoners on death row were sentenced to death by all-white juries after prosecutors had deliberately excluded black people from the jury pool.

At least two prisoners were executed during the year despite disturbing evidence of racial bias.

Johnny Watkins was executed in Virginia on 3 March. Watkins, black, was convicted of the murders of a white woman and a white man during the course of unconnected robberies in 1984. He was sentenced to death by an all-white jury after the prosecutor had excluded all black prospective jurors from the pool, despite the fact that the local population is between 30 and 35 per cent black.

Johnny Watkins was convicted and sentenced to death in Danville, a town comprising less than one per cent of Virginia's population, yet responsible for ten per cent of the state's death sentences since 1976. Danville has reportedly sentenced more black defendants to death than any other jurisdiction in Virginia. Seven of the 23 black prisoners currently on death row in Virginia were sentenced to death by Danville juries. According to reports, no white person has ever been sentenced to death in Danville.

William Henry Hance was executed in Georgia on 31 March 1994. Hance, black, was sentenced to death for the 1978 murder of a black woman, Gail Faison. His first death sentence was overturned and he was resentenced to death at a second hearing in 1984.

Hance was tried in the town of Columbus, Georgia, in the Chattahoochee Judicial Circuit. Studies have uncovered strong evidence of racial discrimination in the application of the death penalty in this circuit: prosecutors have been shown to seek the death penalty far more often in white-victim cases than in those involving black victims and to consistently exclude black people from trial juries.

Although the victim in this case was black, there is disturbing evidence of racial discrimination in the process leading to Hance's death sentence. At each of his trials the prosecutor used his peremptory challenges (the right to exclude jurors without explanation) to strike all but one black member from the jury, even though some 34 per cent of the district's population was black.

Some ten days before Hance's execution, the only black juror at the 1984 sentencing hearing prepared a sworn affidavit in which she said she had not voted for the death penalty because of Hance's mental impairment. But the rest of the jury decided to tell the judge they had reached a unanimous verdict for death. When the jurors were polled individually in the court-room, she was too intimidated to say that she disagreed. Her statement was supported by an affidavit from a second juror in the case who said the sentencing deliberations were marked by misinformation, misconduct and racial bias. She said several jury members had made racially derogatory comments about Mr Hance, including reference to him as "just one more sorry nigger that no one would miss."

The two affidavits provided a harrowing account of the haphazard way in which the jury arrived at the profound decision to put someone to death. Initially, most jurors were inclined toward a life sentence, but changed their minds after the trial judge refused to give them requested information about the meaning of a life sentence and the likelihood of release on parole. The jury was split, with some expressing their impatience, and wanting to finish deliberating because the next day was Mothers Day. Someone said that if the jury remained deadlocked there would have to be another trial. In fact, a hung jury would have resulted in a life sentence for Mr Hance.

The Georgia Board of Pardons and Paroles refused to grant clemency despite the testimony of the jurors, and evidence that Hance was borderline mentally retarded. Relatives of the murder victim, Gail Faison, also appealed to the Board to grant clemency, as they opposed the death penalty. The prosecutor had not sought their views when deciding whether or not to seek the death penalty, although this was the usual practice in cases involving white victims in the Chattahoochee judicial circuit.

Execution of the mentally impaired

William Hance, who was executed in Georgia on 31 March 1994 (see case details above), was reported to be borderline mentally retarded and brain damaged. He was first sentenced to death at a trial in which he was allowed to act as his own co-counsel, despite the fact that a clinical psychologist who examined him said that he was incapable of assisting "in an appropriate, rational way" in his own defense. His first death sentence was set aside but he was again sentenced to death at a second sentencing trial.

Georgia law specifically prohibits the execution of those found guilty of capital murder but mentally retarded. The generally accepted boundary of mental retardation is an IQ level of 70. Although William Hance may not have been deemed to meet the threshold under this law, Amnesty International expressed its grave concern to the Board of Pardons that any mentally impaired individual should be subject to the death penalty.

John Thanos was executed in Maryland, at his request, on 17 May, despite a wealth of evidence that he was suffering from severe mental disorders and was very probably incompetent to make the decision to waive his appeals. His history of psychological problems dated from the 1960s. He suffered physical and emotional abuse as a child, sustained several serious head injuries over the years and abused alcohol and drugs. Four medical experts concluded in 1994 that Thanos was incapable of assisting in his defence or of making rational decisions at the time of his trial and sentencing. Another psychologist concluded that Thanos' delusions and psychosis could prevent him from rationally understanding his legal options.

John Thanos was convicted of three murders committed in 1990. He was sentenced to death by the trial judge after he waived his right to be tried by jury. He had spent almost all of his adult life in the prison system and attempted suicide on a number of occasions. While awaiting trial for murder he at one point swallowed 14 sharpened pencils, 15 spoons, his eyeglasses and a plastic toothbrush sharpened at both ends.

An attempt by John Thanos' mother and sister to challenge his competency to waive his appeals was dismissed by the courts. Appeals for clemency on humanitarian grounds were denied.

International safeguards, and a 1991 US Presidential Commission report, seek to eliminate the death penalty for mentally retarded defendants. The President's Committee on Mental Retardation gives special attention to the need to identify mentally retarded defendants. "Accused persons with mental retardation who are not identified as having mental retardation are severely disadvantaged in arranging fair and appropriate legal representation...Their legal rights are less likely to be protected and an appropriate and fair disposition of the case may not be made. They are unlikely to be aware of their right to remain silent or to refuse to answer incriminating questions."Amnesty International has documented the cases of over 50 prisoners suffering from severe mental impairment who have been executed in the USA since 1982.

Execution of juveniles

According to Amnesty International's research, since 1990 only four countries worldwide are known to have executed juvenile offenders: one person was executed in Pakistan and Saudi Arabia in 1992; one in Yemen in 1993, and six in the USA. A total of nine juvenile offenders have been executed in the USA since 1985. The most recent execution was that of Christopher Burger in Georgia in December 1993. International standards state that death sentences must not be imposed on people who were under 18 years old at the time of the offence.

However, in states across the USA, legislators in 1993 and 1994 attempted to legalize the execution of juveniles. At the end of 1994, approximately 37 people were under sentence of death in 12 states, convicted of crimes committed when they were under 18 years old. One has been on death row for 16 years. Most (77 per cent) were aged 17 at the time of the crime; the remainder were 16. Four US states permit the execution of 17-year-old offenders. Twenty-one states have 16 as their minimum age, either by stipulating this in their statute (nine states) or in accordance with court rulings (12 states).

The Florida Supreme Court ruled on 24 March that young people aged under 16 at the time of the crime cannot be executed in Florida. The decision was issued in the case of Jerome Allen, who was, at one time, the nation's youngest death row inmate. He was convicted and sentenced to death for a robbery murder committed when he was 15. "The death penalty is either cruel or unusual if imposed upon one who was under the age of 16 when committing the crime," four justices wrote in the unsigned majority opinion. Florida previously had no minimum age for imposition of the death penalty.

A 1991 Amnesty International study of juveniles sentenced to death in the USA found that the majority came from acutely deprived backgrounds. Most had been badly physically or sexually abused and were of below-average intelligence or suffered from mental illness or brain damage. Many had been inadequately represented at trial.

Prisoners who abandoned appeals and sought execution

Four prisoners executed during 1994 refused to appeal against their death sentence and asked to be executed.

Keith Wells, the first prisoner to be executed in Idaho for 36 years, made his wishes clear in a statement written in February 1993, two years after being convicted for the murders of two people during a robbery. He said, "I feel that prolonging my life through years of appeals will only serve to prolong the pain and grief of not only my family members and loved ones but that of the victims' families and loved ones as well. The Suffering MUST stop so the healing can begin... The cost, both in monetary and emotional well being, for all concerned, taxpayers, family, friends and victims alike for keeping me confined in a 7' x 14' concrete and steel box year after year, is a wasted and irresponsible one. Especially when all that money and energy can be better spent on things that really mean something: Hunger, Poverty, Drug addiction treatment, etc. etc."

Amnesty International nevertheless requested the Idaho authorities to grant clemency to Keith Wells, and urged that the state refrain from taking the retrograde step of resuming executions after so many years. Amnesty International believes that every execution brutalizes society. Executing prisoners who have chosen to abandon their appeals is no less a gross human rights violation than any other execution. The fact that an individual makes such a choice does not relieve the state of its responsibility in taking the life of one of its citizens.

John Thanos was executed in Maryland, at his request, on 17 May, despite a wealth of evidence that he was suffering from severe mental disorders and was very probably incompetent to make the decision to waive his appeals (see case details above).Richard Beavers and George Lott were both executed in Texas during the year after dropping their legal appeals.

Thirty-seventh state reintroduces the death penalty

Kansas became the thirty-seventh state to reintroduce the death penalty in April; the law took effect on 1 July 1994.

State governor Joan Finney allowed the reinstatement bill to become law, despite her own opposition to capital punishment. Although she could have vetoed the bill, Governor Finney decided to take no action but to let the bill become law without her signature as she believed it to be the will of the people of Kansas. However, an opinion poll on public attitudes to the death penalty, carried out in Kansas in mid-April and presented to Governor Finney, found that 66 per cent of those interviewed preferred life-without-parole plus restitution to the victims' families, as an alternative to the death penalty.

The new law provides the death penalty as a possible sentence for persons over the age of 18 for seven types of intentional, premeditated murder, including the killing of a rape victim or a police officer. It established lethal injection as the execution method. The last execution carried out in Kansas was in 1965.

A particularly disturbing provision of the new law allows the involvement of health professionals in the execution process (see next section for details).

Participation of health professionals in execution process

As mentioned above, Kansas ' newly-enacted death penalty law contains a provision that a panel of three medical experts would advise the Secretary of Corrections in carrying out executions. This is contrary to ethical guidelines issued by the American Medical Association (AMA) and the World Medical Association, both of which prohibit physicians from participating in executions other than to certify the prisoner's death. In December 1992, the AMA's Council on Ethical and Judicial Affairs developed a clear definition of physician participation in executions and adopted a series of guidelines. These prohibit, among other things, the "rendering of technical advice regarding executions."The AMA called on state licensing and disciplinary boards "to treat participation in executions as grounds for active disciplinary proceedings, including license revocation."

In North Carolina, a group of doctors asked the legislature in June to remove a requirement that physicians participate in executions. Some 29 states reportedly require that doctors monitor executions and then issue a death certificate.

"The physician who is monitoring vital signs is in a sense giving a tacit order to continue an execution. That makes him a surrogate executioner," said Dr Jeffrey Sonis, a family medicine instructor at the University of North Carolina at Chapel Hill's medical school. "Every major medical association in the world which has looked at this issue – including the American Medical Association and North Carolina Medical Society – has declared that physician participation in executions is completely unethical, unprofessional and incompatible with the role of a physician," he said.

State legislation on the death penalty during 1994

As in previous years, numerous bills were introduced in state legislative sessions regarding the death penalty. Most failed to complete their passage, but more than 20 new laws were enacted in some fifteen states. Eight states enacted legislation which increased the number of aggravating circumstances which qualify a murder as a capital offence (Alabama, Colorado, Delaware, Georgia, Indiana, New Hampshire, North Carolina and Tennessee).

Two states, Maryland and Virginia, introduced lethal injection as the method of execution. Maryland previously used lethal gas and Virginia used electrocution.

Three states enacted life imprisonment without possibility of parole as the alternative to the death penalty on conviction of capital murder (Georgia, Mississippi and North Carolina).

Nine states introduced bills to reinstate the death penalty, but only one bill became law (Kansas: see above). Bills failed in Alaska, Hawaii, Massachusetts, Michigan, New York, Rhode Island, West Virginia and Wisconsin.

Gas chamber in California held illegal

On 4 October a federal judge ruled that California's gas chamber at San Quentin, where nearly 200 prisoners have been executed since 1938, is a brutal relic with "no place in civilized society" and must be immediately shut down.

Judge Marilyn Hall Patel of the Federal District Court was the first federal judge to declare a method of execution unconstitutional. Her ruling required California to conduct all future executions by lethal injection, an option added by state law in 1993. Judge Patel cited evidence that prisoners in the gas chamber remain conscious for 15 seconds to a minute, or longer, and are likely to experience "intense physical pain."

California's Attorney General, Daniel E Lungren, called the ruling "a tragic day for victims of crime and their families," and said it would be appealed to the Supreme Court if necessary.

In January, the United Nations Human Rights Committee, which monitors states' compliance with the International Covenant on Civil and Political Rights (ICCPR), issued a ruling that Canada was in breach of the ICCPR when it permitted the extradition of Charles Ng from Canada to California where he faced capital murder charges. It said California's gas chamber, which was at the time the state's sole method of execution, would inflict "cruel and inhuman treatment" in violation of Article 7 of the ICCPR. Canada therefore violated the covenant by extraditing Ng "without having sought and received assurances that he would not be executed," the Committee said.

Charles Ng was charged with 12 murders committed in 1984 and 1985. He fled to Canada, was arrested in Calgary and fought extradition for six years. Canada's Supreme Court narrowly upheld the extradition and he was returned to California in 1991. The Human Rights Committee expressed regret that Canada had not complied with its earlier request to delay action on the extradition while the case was under review.

Longest death row resident has sentence reduced

On 10 August 1994, Dwayne Hulsey's death sentence was reduced to a life sentence without parole. He had spent nineteen years on death row in Arkansas, longer than any other inmate. The reduction in sentence came because of an improper jury instruction given at the penalty phase of his trial. Hulsey's case was originally prosecuted on direct appeal by Bill Clinton, then Arkansas' Attorney General.

Cost of the death penalty

A 1994 study revealed the outrageous expense of the death penalty. The bulk of the cost is incurred at the trial. A study by Duke University concluded that adjudicating capital cases in North Carolina cost at least an extra $2.16 million per execution, compared to the costs of adjudicating life-without-parole cases.

Harris County in Texas, which included the city of Houston, is the country's busiest capital murder trial jurisdiction per capita, with 21 death penalty trials in 1992, 18 in 1993 and an expected 25 in 1994. Each capital case costs Harris County an average of $2 million from arrest to execution, according to figures compiled by a district judge. Thirty-three Harris County convicted murderers have been executed since 1982 and 108 more are on death row. Even capital punishment proponents have begun to question the expense of handling so many death penalty cases. They ask if Houston can afford to prosecute them at current rates.

Louisiana Bishops reiterate opposition to the death penalty

The Catholic Bishops of Louisiana on 2 June restated their opposition to the death penalty, saying that "capital punishment plunges us farther into the culture of death."The bishops acknowledged the anger, fear and frustration which led some to promote the death penalty to counteract violence; but they felt compelled "to raise a voice of reasoned dissent."

"We are convinced that violence begets violence; death begets death. We are convinced that we must choose consistently for life. This means forgoing a right to impose the death penalty in order to reverse the culture of violence and death."The bishops said they oppose the death penalty because "we believe in the sacredness and dignity of every human life, even the life of those among us who have committed terrible crimes."

"We who claim to be followers of Jesus need to search out the roots and reasons for our current attitudes about punishment for offenders. We must ask ourselves whether or not the negative power of vengeance has found a home in our hearts. The very violence that frightens us so much has made us proponents of violence."

Prisoners executed during 1994

NumberDateNameStateMethodRaceVictim

1/227/106 JanKeith WELLSIdahoLIWWF+

2/228/72 02 FebHarold BARNARDTexasLIWAM

3/229/23 03 MarJohnny WATKINSVirginiaEBWF

4/230/73 31 MarFreddie WEBBTexasLIBWM

5/231/18 31 MarWilliam HANCEGeorgiaEBBF

6/232/74 04 AprRichard BEAVERSTexasLIWWM

7/233/33 22 AprRoy STEWARTFloridaEWWF

8/234/75 26 AprLarry ANDERSONTexasLIWWF

9/235/24 27 AprTimothy SPENCERVirginiaEBWF

10/236/7603 MayPaul ROUGEAUTexasLIBBM

11/237/0210 MayJohn GACYIllinoisLIWWMx

12/238/0511 MayJonas WHITMOREArkansasLIWWF

13/239/0611 MayCharles PICKENS ArkansasLIBBM

14/240/0116 MayJohn THANOSMarylandLIWWM

15/241/7727 MayStephen NETHERYTexasLIWWM

16/242/0227 MayCharles CAMPBELLWashingtonHWWFx3

17/243/7814 JunDenton CRANKTexasLIWWM

18/244/0615 JunDavid LAWSONN.CarolinaGWWM

19/245/0323 JunAndre DEPUTYDelawareLIBBM+B

20/246/7902 AugRobert DREWTexasLIWW

21/247/0703 AugHoyt CLINESArkansasLIW

22/248/0803 AugDarryl RICHLEYArkansasLIWWM

23/249/0903 AugJames HOLMESArkansasLIW

24/250/0102 SepWili OTEYNebraskaLIBWF

25/251/8016 SepJesse GUTIERREZTexasLILWF

26/252/8120 SepGeorge LOTTTexasLIWW

27/253/8205 OctWalter WILLIAMSTexasLIBWM

28/254/8322 NovWarren BRIDGETexasLIWW

29/255/8405 DecHerman CLARKTexasLIWWM

30/256/0308 DecGregory RESNOVERIndianaLIWWM

[1]Justice Lewis F Powell Jr.: a Biography, by John C Jeffries Jr., a law professor at the University of Virginia.