IN 1977, one year after the death penalty was reinstated in the U.S., the machinery of death set its wheels in motion with the execution of Gary Gilmore by a Utah firing squad. "Let's do it," Gilmore said just before the shots were fired. Since then, the U.S. has "done it" on a grand scale. The tough-on-crime agenda promoted by Republicans and Democrats alike has seen the rate of executions steadily increase in the United States. But now, more than 700 executions later, the death penalty is under ever-increasing scrutiny.
In a remarkable turn of events, the case of Timothy McVeigh--the poster child for death penalty supporters--has cast further doubt on the fairness of the death penalty. The FBI's failure to provide McVeigh's defense team with more than 3,000 pages in documents forced Attorney General John Ashcroft to delay McVeigh's execution by a month. The delay has led to a new wave of criticism of the criminal justice system. "If this type of error could happen even in this case, which has been under the closest of public scrutiny since the moment the bomb went off, think what must happen in countless cases--particularly at the state level--in which nobody is watching carefully," wrote the Washington Post in a May 12 editorial.
Without question, there are numerous others on death row who never received a fair trial. The government's own Department of Justice has reported that race played a significant factor in the administration of the federal death penalty. Of the 24 men on federal death row, 21--or 87 percent--are nonwhite.
Horrific stories about wrongful convictions continue to abound in the media. Recently, Jeffrey Pierce, a landscaper who spent 15 years in prison in Oklahoma, was freed after DNA testing proved his innocence. The Oklahoma City police department's forensic scientist, Joyce Gilchrist, testified against Pierce by placing him at the scene of the crime. She is now under investigation for falsifying, withholding, and failing to test evidence in criminal cases.
A preliminary FBI study of eight cases that Gilchrist worked on found that in at least five she made outright errors or overstepped "the acceptable limits of forensic science." In response, Oklahoma Governor Frank Keating was forced to launch a review o² approximately 3,000 cases that Gilchrist worked on. The investigation will begin with 12 cases in which the defendants are currently on death row. In 11 other cases, the defendants have already been executed.
Prior complaints about Gilchrist's performance--made more than a decade ago--were ignored by officials. Jack Dempsey Pointer, president of the Oklahoma Criminal Defense Lawyers Association, says that his group has been fighting for an investigation "almjst since the time she went to work....We have been screaming in the wind, and nobody has been listening."
The truth is that for years Gilchrist has been working hand in hand with the Oklahoma District Attorney's office to win convictions. But now, the winds have shifted. Oklahoma's District Attorney Bob Macy recently resigned from his post in light of the revelations about Gilchrist, and conservative law-and-order politicians like Governor Keating are being forced to take action.
Since Governor George Ryan declared a moratorium in Illinois, the momentum against the death penalty has grown. Leading up to McVeigh's originally scheduled execution date, an ABC News/Washington Post ›oll showed that support for the death penalty had dropped dramatically from 80 percent seven years ago to 63 percent today. Moreover, the poll showed that a majority of Americans, 51 percent, not only supported a nationwide moratorium on the death penalty but would also support a law replacing the death penalty with mandatory life imprisonment.
A revitalized movement against the death penalty has resulted in pending moratorium legislation in a record 19 states. This year, Arizona became the fourteenth state to pass a law banning the execution of the mentally retarded. Similar legislation regarding the mentally retarded is pending in at least seven other states, including Texas. And nationally, the U.S. Supreme Court is considering this issue 1¯ years after it ruled that executing the mentally retarded did not violate the Constitution because there was no "national consensus" against such executions. In Texas, legislators recently passed a law giving death row inmates the right to DNA tests in some cases that might prove their innocence.
Perhaps most significantly, a de facto moratorium is now in effect in Maryland. Although four death row inmates--three of whom are Black--were facing execution this spring, the Maryland Court of Appeals ruled that it would hear death row inmate Steve Oken's appeal in the fall. Since Oken's appeal has implications for other death row inmates, no executions will take place in Maryland before the court hears his appeal in September.
This ruling was not made in a vacuum. Just days earlier, state lawmakers almost passed a one-year moratorium on executions as a result of a major grassroots campaign by anti-death penalty activists. But a staunch pro-death penalty Democrat blocked the bill's passage in the state senate with a filibuster.
The FBI blunder in the McVeigh case has served to underline the injustices produced by a steady stream of wrongful convictions. And with issues of innocence, prosecutorial misconduct, and racial bias in death penalty cases under intense scrutiny, doubts about other parts of the criminal justice system are growing too.
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