The system of imposing the death sentence in this country is not working. It completely fails to select for the ultimate punishment those offenders who have committed the most heinous crimes.
A member of the Georgia Board of Pardons and Paroles has said that if you take 100 cases punished by death and 100 punished by life and shuffle them, it is impossible to put them back in the right categories based upon information about the crime and the offender.
One reason is the quality of justice that poor people receive in capital cases.
A black man was sentenced to death in Georgia in a trial that started with jury selection at 9 a.m., and ended 17 hours later at 2 a.m. with a death sentence. In between, the jury was deadlocked as to guilt, but the defense lawyer agreed to replace the one holdout juror with an alternate. Three minutes later a guilty verdict was returned. In Mississippi, a man was sentenced to death at a trial where he was represented by a third-year law student.
Capital cases have been assigned to defense lawyers on a low-bid system in one Georgia circuit. The only qualification to submit a bid was membership in the Georgia bar. The lowest bidder got the case.
In four different capital trials in Georgia, the defense lawyer at some point in the proceedings referred to his client as a "nigger." The death sentence was imposed in all four.
A defense lawyer who has handled a number of capital cases in Georgia testified recently that the only criminal law decisions from any courts with which he is familiar are "Miranda and Dred Scott." (The latter, decided in 1857, was not a criminal case.)
Last year in Alabama, a capital trial had to be delayed for a day in mid-trial because the defense lawyer was drunk. He was held in contempt and sent to jail to dry out. The next morning he and his client were both produced from the jail, the trial resumed, and the death penalty was imposed a few days later.
One-fourth of those now on death row in Kentucky were represented at their trials by lawyers who have since been disbarred, suspended or imprisoned.
Much of the support for the death penalty is bolstered by the belief that the legal process for imposing a death sentence is elaborate. Reading the Supreme Court's decisions upholding capital punishment in 1976, one would think that a number of procedural protections ensure that death is imposed only for the most aggravated crimes committed by the most depraved killers. The reality of capital punishment is quite different.
Inadequate legal representation is pervasive in the death-belt states of the South for several reasons, but the primary one is money. Alabama limits compensation for out-of-court preparation in capital cases to $20 per hour, up to a limit of $1,000. Mississippi and Arkansas limit the total compensation of defense counsel in a capital case to $1,000.
Perversely, the mistakes these lawyers make are insulated from appellate review. The courts hold that such defense lawyers "waive" the rights of their clients when they fail to recognize and object to violations of the Constitution. Thus, the poorer the level of representation that the defendant receives, the less scrutiny the case will receive on appeal.
Consider the case of two codefendants, Smith and Machetti, who were both sentenced to death by unconstitutionally composed juries in separate trials. Machetti's lawyers challenged the jury composition; Smith's lawyers did not. A new trial was ordered for Machetti at which a life sentence was imposed. The federal courts refused to hear Smith's case, because his lawyer had not raised the issue at trial. Smith was executed.
Nonetheless, a number of proposals have been introduced in Congress to cut back further on review of death sentences by federal courts. Proposals have also been introduced to improve the quality of legal representation, but they do not address the need for adequate compensation to attract qualified lawyers and the need for specialists to handle capital cases.
Throughout history, the death penalty has been inflicted upon the poor and members of racial minorities. Nothing has changed with the new statutes approved in 1976. Too frequently the death penalty is punishment not for committing the worst crime but for being assigned the worst lawyer.
The writer, an Atlanta lawyer, is director of the Southern Prisoners' Defense Committee. This article is taken from his testimony before Congress.