States have executed 96 death row inmates so far this year, a significant increase in government-sanctioned killings over last year, and far more than any annual total since the Supreme Court allowed capital punishment to resume in 1976.
The number of prisoners put to death in the 1990s rose to 476 last Thursday when convicted murderer Andre Graham, 29, was given a lethal injection in Virginia. His was the 596th execution since the resumption of state-sanctioned killings 23 years ago. And at least three more condemned men are likely to die this week before the customary Christmas-season execution hiatus begins.
It has been another year of death-penalty controversies, with execution opponents pointing to high-profile cases in Missouri, Florida, Illinois and elsewhere as new evidence that capital punishment is arbitrary, unconstitutionally cruel and fraught with the potential for irreversible mistakes. And yet it has been another period of growth and entrenchment for capital punishment. Not since 1951 have more prisoners been put to death in the United States in a single year.
In a joint anti-death-penalty campaign begun last week, the nation's Roman Catholic bishops and leading rabbis have vowed to lobby state legislators and activate protest groups, hoping to infuse the opposition to capital punishment with the fervor of the antiabortion movement. In a similar effort, more than 4,000 death-penalty foes--including civil rights groups, the American Bar Association and some members of Congress--began calling last month for a moratorium on executions.
But the death penalty, on the books in 38 states, refuses to die.
"I'm not going to sit here and say that this is the end, it's all over, we're all going to give up and run away," said Bryan Stevenson, head of Equal Justice Initiative, an Alabama group that provides appellate lawyers for death row prisoners. "But it's bad, and it's going to get worse before it gets better."
Capital punishment supporters welcome the trend. With 250 to 300 death sentences being meted out annually for the past decade, this year's 96 executions "is still a tiny number," said Robert Pambianco, chief policy counsel for the pro-death-penalty Washington Legal Foundation. But it shows that "the system is working itself to a point where . . . an actual execution will no longer be years and years removed from the [imposition] of the sentence." He said that will enhance what he and others contend is the death penalty's deterrent effect on crime.
The growing number of annual executions--there were 68 last year--reflects the graying of death rows. After years of fighting in court to stay alive, more and more condemned inmates from the 1980s and early 1990s are reaching the end of their appeals. Lawyers said provisions of the federal Anti-Terrorism and Effective Death Penalty Act of 1996 that were meant to hasten the appeals process also have begun to be felt.
In Indiana, a federal inmate convicted of three drug-related murders appears to have run out of appeals and may soon become the first person to be executed under the death-penalty law passed by Congress in 1988.
New Mexico, meanwhile, is preparing for its first execution since 1960. Terry Clark, 43, who admitted abducting and fatally shooting a 9-year-old girl, has said he would rather be lethally injected than live on death row. If a judge lets Clark give up his appeals--and many lawyers familiar with the case think he will--then, early in 2000, New Mexico will become the 32nd state to put an inmate to death since the restoration of capital punishment.
"Among the staff, there's a feeling of anticipation," said Tim Le Master, warden of the New Mexico penitentiary in Santa Fe. Although he and the prison's staff are determined to conduct the execution smoothly, he said, "the staff here is just like the public. There's a feeling among everyone: Is this right? Is this something we should do or something we shouldn't do? There's always that question."
In its 1972 ruling in Furman v. Georgia, the Supreme Court effectively threw out death-penalty laws nationwide, saying that death sentences were being imposed arbitrarily, especially on blacks, with little or no guidelines for what constituted capital murder. The ruling emptied death rows across the country. Then, states began enacting tighter statutes and repopulating their death rows with new inmates.
Today, the debate goes on: Capital punishment does or does not deter crime; the disproportionate number of blacks awaiting executions, compared with the nation's overall black population, is or is not evidence of a racially skewed death-penalty system; public support for the death penalty, consistently measured at 70 percent to 80 percent since the mid-1980s, is or is not soft; executions are morally repugnant or a morally acceptable form of retribution.
In 1972, public support for capital punishment had been declining for years, no executions had been carried out since 1968, and the death row population nationwide was about 620. Today, more states have capital punishment laws than had them before 1972, and, at last count, the death row population was 3,565.
Both sides in the debate agree on the current Supreme Court's death-penalty thinking: None of the justices believes executions are fundamentally unconstitutional. What death-penalty foes hope is that some justices will change their minds, as they review more and more challenges to individual aspects of the death-penalty process. This year, for instance, the court agreed to decide whether Florida's notorious electric chair, with its sparks and flames, is so gruesomely unreliable that it violates the ban on cruel and unusual punishment.
Abolitionists said they also hope that highly publicized quirks and mistakes in the death-penalty process will stir more debate about the practice and eventually sway public opinion their way. This year, for example, seven wrongly condemned men have been freed from death rows. Anthony Porter, 43, whose release in Illinois gained worldwide attention, had been awaiting execution for 16 years, until a Northwestern University journalism class located the real killer.
While execution opponents cite those cases as evidence of a dangerously flawed system, supporters of capital punishment see the cases as proof that the system, in the end, works. "The fact is, they're still alive," said Pambianco. "The anti-death-penalty people can't point to any case of an innocent person being put to death."
Other contentious aspects of the death penalty--the vagaries of executive clemency, for example, and the fact that a death row inmate's odds of being executed in the United States depend largely on geography--also flared anew this year.
In Missouri, Gov. Mel Carnahan, a moderate Democrat and death-penalty supporter, granted clemency to convicted triple-murderer Darrell Mease, 52, who had the good fortune of being scheduled to die near the time of Pope John Paul II's visit to St. Louis in January. The pontiff asked Carnahan to show mercy for Mease by commuting his sentence to life, and the governor obliged, drawing sharp criticism from Republicans in one of the nation's leading execution states.
In March, after Carnahan refused to stop another scheduled execution--a controversial case in which the evidence was questionable and the argument for clemency far more compelling than Mease's--capital punishment foes and others accused him of playing politics with the death penalty. Carnahan, who already had announced his intention to run against conservative Sen. John D. Ashcroft (R) next year, denied the allegation.
Among the 38 governors of states with death-penalty laws, Carnahan is one of 23 empowered to unilaterally spare a condemned inmate. New Mexico's governor also has the authority, which is why that state has yet to execute anyone under its 1979 capital punishment statute. In 1986, as his term was ending, Gov. Toney Anaya (D), who said he was morally opposed to executions, granted a blanket commutation to New Mexico's five death row inmates, changing their sentences to life.
The four prisoners in addition to Clark who have landed on death row in Santa Fe since Anaya left office can expect no such leniency from the current governor, Republican Gary E. Johnson. "He believes that if the state of New Mexico were more like Texas," which has executed 197 people since 1976, "then we'd see less crime," said Johnson's spokeswoman, Diane Kinderwater.
Just as inconsistencies in the clemency process add to the overall unfairness of capital punishment, abolitionists said, so do the differing death-penalty philosophies of prosecutors and judges from one jurisdiction to the next. Being sentenced to life instead of death is "a matter of sheer fortuitousness, of being on one side of a county or state line instead of another," said Elisabeth Semel, head of the American Bar Association's Death Penalty Representation Project.
For example, while Texas has carried out 33 executions so far this year, California has put just two prisoners to death. Both states enacted new death-penalty laws in the mid-1970s, and California has 100 more death row inmates than Texas's 457. But with state and federal appeals courts in California dominated by liberal justices for most of the 1980s, death-sentence reversals were routine. The state's first execution after the return of capital punishment did not occur until April 21, 1992.
By then, Texas had put 45 prisoners to death, and it has carried out 152 executions in the years since, compared with six in California. One big difference is that Texas's Court of Criminal Appeals and the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, are among the most conservative judicial panels in the nation. Seldom do they see a death sentence they cannot abide.
Texas Gov. George W. Bush, the leading GOP presidential hopeful, may not grant clemency unless the state's 18-member parole board (made up entirely of Bush appointees) recommends that he do so. Only once has that happened in Bush's five years in office.
In preparing for New Mexico's possible execution, warden Le Master visited Texas in September to study that state's well-practiced routine. He said the calm efficiency with which the condemned there are dispatched impressed him.
"It was very humane," he said of a lethal injection he watched, his first. "I mean, humane as it could be, I guess."
Death Penalty in America
There have been 596 executions since the Supreme Court allowed capital punishment to resume in 1976. Ninety-six were carried out this year.
Annual executions nationwide
This year's to-date total of 596 is the highest annual number of executions since the death penalty was reinstated.
Executions per 2 million people, since 1976:
Pop. 58.4 million
Across the nation's midsection
Pop. 46.9 million
The Old Confederacy
Pop. 69.9 million
The N.Y.-Washington Corridor
Pop. 44.2 million
Pop. 4.4 million
States that don't have death penalty laws: Alaska, Hawaii, West Virginia, Minnesota, Wisconsin, Michigan, Iowa, North Dakota, Massachusetts, Vermont, Maine, Rhode Island. The District of Columbia also has no death penalty.
Thirty-eight states have death penalty laws. Of these, 31 have carried out executions.
The Old Confederacy
So far Overall
this year total
Texas 33 197
Florida 1 44
Virginia 14 73
Louisiana 1 25
Georgia 0 23
South Carolina 4 24
Arkansas 4 21
Alabama 2 19
North Carolina 4 15
Mississipppi 0 4
Tennessee 0 0
Total 63 445
So far Overall
this year total
Arizona 7 19
Nevada 1 8
California 2 7
Utah 1 6
Washington 0 3
Montana 0 2
Oregon 0 2
Colorado 0 1
Idaho 0 1
Wyoming 0 1
New Mexico 0 0
Total 11 50
The nation's midsection
So far Overall
this year total
Missouri 9 41
Illinois 1 12
Oklahoma 6 19
Nebraska 0 3
Indiana 1 7
Kentucky 1 2
Ohio 1 1
Kansas 0 0
South Dakota 0 0
Total 19 85
So far Overall
this year total
Delaware 2 10
Pennsylvania 1 3
Maryland 0 3
New Jersey 0 0
New York 0 0
Total 3 16
So far Overall
this year Total
Connecticut 0 0
New Hampshire 0 0
Total 0 0
SOURCES: Death Penalty Information Center, U.S. Census, "The Death Penalty in America"
CAPTION: Tim Le Master, Sante Fe penitentiary warden, may soon preside over New Mexico's first execution since in 1960.