Is it time to remove the death penalty?

With over 700 inmates on death row, San Quentin warden Jeanne Woodford argues it’s time to remove the death penalty, writes Bette Browne

IN San Quentin prison in California just after midnight on four occasions warden Jeanne Woodford checked her watch before giving the final order to execute four men on death row. Today she is among a growing number of Americans campaigning to end the death penalty in the United States, the only Western democracy that still imposes it.

The death penalty, which Ms Woodford now decries, is legal in 32 states and there are 18 non-death penalty states - the federal government and military also impose it, though neither has done so in over 10 years. The country has executed 1,385 people since it became constitutional to do so again almost 40 years ago.

Execution by hanging still exists in three US states. That was also the method used in Ireland for the last execution here in 1954 when Limerickman Michael Manning was hanged in Mountjoy Prison for the murder of Catherine Cooper. The death penalty was abolished in law for all offences in 1990 and was expunged from the Irish Constitution in a referendum in 2001.

In San Quentin that same year Ms Woodford was giving the order to proceed with the execution of Robert Massie. She began her 30-year career in San Quentin in 1978 after graduating with a degree in criminal justice, rose through the ranks to the top post of warden of the prison and ultimately became the director of California’s entire prison network of 33 prisons.

San Quentin has the most populous death row in the US, with over 700 people, or nearly double the number in Texas, though Texas leads the nation in the number of executions. The prison was built in 1852 and still has a gas chamber, but since 1996, executions, like those overseen by Ms Woodford, have been carried out by lethal injection

“Being a warden in San Quentin is like running a city,” Ms Woodford said in an interview from California.

“Prisons are very large and very different from a jail. Within a prison you have a school, a hospital or some form of medical facility, you have plant issues and maintenance staff who work for you, and you’re responsible for making sure inmates and staff are safe and that individuals aren’t able to escape from your facility.”

She described in matter-of-fact detail how executions happen in San Quentin. “The executions don’t start on one day. The planning starts when the warrant is received 30 to 60 days prior to an execution. You begin planning for the execution from the moment you get the warrant.

“There are lots of protocols that have to be addressed and depending on the notoriety of the individual there may be protests along the way. You also expect protests at the facility itself on the night of the execution, so you begin working with outside law enforcement to plan for any of those scenarios.

“You serve the warrant to the inmate and the death row inmate has decisions he has to make - things like what his last meal will be, who will handle his remains, who he will give his property to, his religious adviser will be there. So there is dialogue between you or your staff and the individual who has a scheduled execution date.”

On the day of his execution - San Quentin now holds only male prisoners on death row - the condemned man prepares to say his final goodbyes to any family or friends who may have come to be with him on the night of his death. At exactly 6pm that night he begins his final journey to the death chamber.

“The day of the execution, the inmate is allowed to visit with his family or friends or attorney up until 6pm, at which time he is moved into the execution chamber holding area. He remains in contact with his attorney by phone after that. The execution occurs one minute after midnight, so throughout the night before that you’re going over and checking on the inmate and staff.”

Ms Woodford informs the inmate he will be allowed a last statement and comes back a short time later to ask if he has a statement. “Then it’s very close to midnight and the warden talks to each of the groups of people who have assembled for the execution. They include the victim’s family members, if they are in attendance, his attorney, official witnesses and the media.

“The purpose of that is to let everyone know that the execution will go forward and will be carried out in a dignified manner and that if anyone has an outburst or cannot control themselves they will be removed from the execution chamber.

“At midnight, the warden is on the phone with two people - a representative of the US Supreme Court and a representative of the state courts. The warden turns to them and says ‘are there any legal issues pending before the court that would prevent this execution from going forward,’ waits for an answer, and if the answer is ‘no, there’s not’ then the warden gives the order for the execution to proceed.”

Thirteen people have been executed in this manner in San Quentin since 1978, 11 by lethal injection and two in the gas chamber. Of the four executions by lethal injection that Ms Woodford oversaw, she said two stand out.

“I remember two of them more than the others because they interacted more with me. One individual, Robert Massie I knew for many, many years. He had also stopped his appeal so in that sense he was a volunteer. He said he was in a lot of pain; he had arthritis and some other healthcare issues. He said he was just tired. He had no family that I know of. He only spoke about being raised in foster care. He was a little more fearful at the end. He said ‘promise me it won’t hurt.’

“I remember the night of his execution, March 27, 2001. I was the last person to talk to him before he died. After that, I brought the witnesses in. I looked at the clock to make sure it was after midnight. I got a signal from two members of my staff who were on the phone with the state Supreme Court and the US attorney general’s office to make sure there were no last-minute legal impediments to the execution. There were none, so I gave the order to proceed.”

At 12.20 am, the execution by lethal injection of Robert Lee Massie began. He was pronounced dead 13 minutes later at 12.33 am. His last words were “Forgiveness. Giving up all hope for a better past.”

He was California’s longest-serving condemned inmate, having spent 28 years on death row. Ms Woodford explained why 59-year-old Mr Massie was executed. “Everyone on death row has committed murder or murder for hire. In his case he was there for murder during a liquor store robbery. He also was on death row for the second time. He had come off it the first time when the death penalty was declared unconstitutional in California in 1972. [It was re-introduced in 1978]. He was eventually paroled but then, sadly, committed murder again during the liquor store robbery.”

Ms Woodford recalled the execution two years earlier of Manuel Babbitt. “I remember him especially because he was a Vietnam veteran. He had a lot of support from people he had served with in Vietnam. Mr Babbitt was a very talkative individual. He talked about everything, but not the execution. He never spoke to me about that.”

At 12:29 am on May 4, 1999, the execution by lethal injection of Manuel Babbitt began. He was pronounced dead eight minutes later at 12.37 am. His last words were “I forgive all of you.”

His execution for the murder of 78-year -old Mrs Leah Schendel came one day after he had turned 50. Thirty years earlier, he had been wounded in the Battle of Khe Sanh in Vietnam and a year before his execution, while on death row, he was awarded a Purple Heart for the wounds he’d received in Vietnam.

How does Ms Woodford feel personally about these executions? “When you’re a warden or a correctional officer you really are trained to have the same relationship with inmates that a doctor would have with his patient. You can be sad when something bad happens to your patient and feel sad when someone is executed, but if you allow it to be that personalised you couldn’t survive that. It would just be impossible.

“I was always opposed to the death penalty because I’ve seen it from every point of view. It’s not about the individual; it’s about public policy for me. From a public policy point of view I came to understand how useless the death penalty is, how expensive it is, it serves no-one, no-one feels better at the end of it, and public safety isn’t improved at the end of it.”

If she never believed in the death penalty, how did she approach implementing it? “Most people don’t believe in the death penalty that I know of who have been involved in it. It’s your job to carry out the law and you look at it from that point of view. I didn’t believe that mentally ill people should be sent to prison but yet they are. That’s the law and so it’s your job to try to handle that issue as professionally as you possibly can. That is really the way that people in my profession view this issue.

“Wardens say the same thing: would you want someone there who wanted to kill someone. No, but you carry out the law as professionally as you can and you hope that over time things will change and people will understand it as those who are close to it do.”

Working in San Quentin was “tough and often horrible”, especially in the 1970s and 1980s, she said. Hardly surprising because during this time San Quentin held about 6,000 prisoners though it had been built for about half that number.

“There are a lot of tough days in a prison. When I started there were so many inmates and the overcrowding was so bad and so few staff and they had such poor training then and so few resources. There were inmates in classroom and gyms, in every nook and cranny. Over time, things improved and they continue to improve, but there were pretty horrible conditions when I first started there. Almost every day was a horrible day.”

There’s no reason to believe that the death penalty is a deterrent, Ms Woodford emphasised. “For something to be a deterrent it must be swift and certain, but there’s nothing swift or certain about the death penalty. Geography decides whether or not you’ll be on death row in the United States and there’s much research and evidence to show why the death penalty is really ridiculous.”

Judge Cormac J Carney would appear to agree. On July 16 he ruled California’s death penalty unconstitutional because it violates the Eighth Amendment to the US Constitution prohibiting cruel and unusual punishment.

In vacating the 1995 death sentence of Ernest Jones, Judge Carney wrote: “Allowing this system to continue to threaten Mr Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” An appeal is expected since no executions can proceed in California while the decision stands. A state-wide vote to repeal the state death penalty was narrowly defeated by a 52-48 vote in 2012.

“In modern societies we have modern prisons with electric fences and prisoners don’t escape. They’re safely housed cheaper than those under the death penalty and so as a public policy we no longer need the death penalty and it serves no-one. To take a life in order to prove how much we value another life does not strengthen our society,” Ms Woodford emphasised.

Looking back, does she fear that someone who may have been innocent was executed during her watch? “I do fear during my career, not during my time as warden, that it’s possible that an innocent person was executed. I don’t think anyone, even if you’re pro death penalty, would feel OK about that.

“We now know that we’ve gotten sentences wrong a lot thanks to DNA testing. Indeed, it’s highly probable that we’ve executed many innocent people. We know that for every 10 people who have been executed, one person has been exonerated or freed. If you knew that one out of 10 planes was going to fall out of the sky would you fly, no. So why would we have the death penalty.

“I don’t think it’s a matter of if it will be abolished, it’s a matter of when and I hope it will happen soon. I would very much like to see the end of it.”

So too would Clareman Dannie Hanna, who is in his last months of training to be a solicitor and who studied the issue first hand while working with death row inmates in Texas, the US state with the highest number of executions.

Mr Hanna studied law at NUI Galway, graduating in 2008 and then went on to do a Masters of Law at Cambridge, where he came in contact with the Texas Defender Service, a group of attorneys working to combat the flaws plaguing the death penalty in Texas.

Mr Hanna was attached to the Texas Defender Service as a legal intern in the summer of 2010 working on behalf of male death row prisoners who were held at the Polunsky Unit prison in Livingston, 60 miles from the execution chamber in a separate facility in Huntsville.

“A typical day on death row in Texas starts at 4.30am when the prisoners are served breakfast. If they don’t wake up for breakfast, they may not be fed for the day,” Mr Hanna told me in an interview.

“The prisoners remain in their cells for 23 hours a day, seven days a week in total isolation. The only physical human contact they ever have is the mandatory strip searches every time they leave their cell for a 15-minute shower and 45-minute recreation time each day.

“They recreate one at a time in a cage with one basketball and a basketball hoop. This is again done in total isolation. This is repeated every day until the day of their execution.

“In my discussions with some prisoners they told me that sometimes the prison guards deliberately deny some death row prisoners their shower and recreation time.

“The death row prison cells have no air conditioning and they are not permitted fans. In Texas the weather can, and did when I visited the prisoners, go over 100 degrees Fahrenheit.

“The prisoners can buy radios which some use. They are supposed to have access to a prison library every two weeks, but when I visited death row the library had not been offered in more than a few weeks.

“I worked on behalf of guilty individuals who were seeking to either have their death sentence set aside or, more often than not, commuted to life without parole -on grounds, for example, of mental illness rendering an inability to stand trial. I was part of a team that achieved success for Ricky (Eugene) Kerr, whose sentence was commuted to life without parole.

“Ricky was sentenced to death for the murder of his landlord and landlord’s son in 1994 in a dispute over Ricky’s lease. It was successfully argued before the Texas Criminal Court of Appeal that he had ineffective legal counsel at trial phase because his lawyer at the initial trial had not adequately prepared Ricky’s case and informed the jury of a myriad of mitigating factors, like physical and mental abuse, addiction, low IQ, and so on. The Texas Criminal Court of Appeal was of the opinion that had the jury been informed of these mitigating factors, it may have impacted on their decision to sentence Ricky to death. [In most US states the judge, alone, determines the sentence. In some states, following a guilty verdict, a new jury determines the sentence for certain crimes.]

“Ricky was on death row since 1995 and came within one day of his execution when the Texas Defender Service obtained a stay of execution. His new punishment trial was concluded on November 22, 2011, where Ricky secured a plea bargain of life in prison. Ricky had spent 16 years on death row.

“One of my tasks as part of the team was to contact as many teachers as possible who might have had some interaction with Ricky as a young student. The purpose of this was to build as complete a picture as possible of Ricky to demonstrate mitigating circumstances that had not been set out to the jury at the initial punishment phase in 1995.

“This task was complicated by the fact that he had dropped out of school at an early age. But I did achieve one breakthrough when I managed to make contact with a school which was able to provide a list of teachers, whether they were still alive and their whereabouts. I will never forget the feeling of sheer joy from that minor breakthrough.”

Mr Hanna said death row is designed to “penalise and dehumanise” prisoners “in a slow, grinding process” before their execution.

“Imagine you were to place a group of men in separate cages in one building who have committed atrocious murders, robbed and killed and raped. The death row regime is designed to penalise and dehumanise them in a slow grinding process from the moment they are sentenced to death and deprives them of basic

He also found that “there is a recurring theme on death row of poverty, mental illness, addiction, intellectual disability, a history of sexual, emotional or physical abuse. Depression is also rampant among the prisoners arising from knowing the date of their death.”

Mr Hanna travelled to Texas and worked with the prisoners so he could make an informed decision on the death penalty. His work convinced him of the validity of his stance against it. “I was against it in principle before starting work. I can now firmly say that it is not a solution to dealing with the terrible crimes death row prisoners have committed. It is deeply flawed on so many levels as a criminal justice tool.”

Recent botched executions underline these flaws and show the increasing “chaos and desperation” of the death penalty system in the United States, according to Matthew Cherry, director of the anti-death penalty organisation Death Penalty Focus. Since the death penalty became constitutional in 1976 there have been at least 45 botched executions, with three so far this year.

“We hope that both the states that are conducting executions and perhaps more importantly the courts will react to these botched executions by calling a moratorium because there is so much uncertainly about how they can carry them out without causing cruel and unusual punishment, as the US Constitution says.

“The court responsible for Arizona where the latest botched execution took place in July did stay the execution because of doubts about lethal injection protocol, centring on what drugs they were using, where those drugs came from and who was administering the drugs. However the Supreme Court overturned that ruling. That was a mistake because the execution was subsequently bungled. We hope the Supreme Court will learn its lesson, but only time will tell.”

Meantime, Mr Cherry believes the tide is turning in favour of abolition. “There’s been a long and slow decline in support for the death penalty. Twenty years ago polls showed about 80% support. Now it’s down to about 60%. But when people are given a choice between the death penalty and life in prison, we see that a majority support life in prison.”

Underscoring this view, a recent poll by ABC and the Washington Post for the first time showed that 52% supported life imprisonment versus 42% for the death penalty. Meanwhile, the number of death sentences per year has dropped dramatically since 1999. Then there were 277 versus 79 last year.

“Slowly but surely we are seeing a change in public opinion and now a majority says it’s better to have life in prison as the ultimate punishment instead of the death penalty, so we’re getting there. But in many cases the states have not caught up with public opinion and politicians are still where they were 20 years ago.”

His argument against the death penalty focuses on a number of areas. “Personally I oppose the death penalty because it does not work, it’s unfair, it’s discriminatory and completely dysfunctional, it doesn’t deter criminals, nor does it help victims.

“I also believe that, beyond being completely ineffectual, having the death penalty is actually counter-productive because it teaches us that violence and killing are acceptable solutions to social problems which is a mindset that encourages more violence and killing.

“On the economic argument, a lot of people assume that a death sentence is cheaper than life in prison but in fact in the US it is much more expensive to sentence someone to death and then go through with all of the appeals and extra hearings than it is to sentence someone to life in jail.”

The humanitarian and legal side of the argument is especially powerful, he stresses. “If it only happens once that an innocent person is executed, that’s too many times. We know that 144 people have been exonerated and freed from death row since 1973. That is a big concern with the public. We find that as awareness of innocent people being sentenced to death increases then support for the death penalty declines.”

The strategy of abolitionists is to target the death penalty at all levels. “In the past seven years six states have abolished the death penalty and we’ve also seen several states impose moratoriums in the last yew years.

“In some states it is very popular, particularly in the Old South where it tends to have a lot of historic support. But we believe if we can keep up the strategy to get rid of it in states across the country - it’s almost gone in the north east and the west, it’s been reduced in the mid-west and it’s even been reduced in the Old South - we may reach a point where there is a national decision to get rid of it everywhere.

“That may come through the courts or the legislature. The Supreme Court may decide that a national consensus has clearly developed against the death penalty and could step in and outlaw it nationwide. This could happen very quickly though it’s always hard to tell with the Supreme Court.

“Every time someone is about to be executed they take an appeal to the Supreme Court and overwhelmingly it just dismisses the appeal. But if justices were to decide that the time had come to end the death penalty then it would be up to them to accept one of these cases and make that ruling.”

Mr Cherry suggested that such a momentous ruling could come within a decade. “One of the reasons I’m doing this work is that I believe the time is right and that we could see the end of the death penalty in the US within a decade.”

And if that were to happen he believes it could ultimately lead to the global abolition of capital punishment.

“Before I worked for Death Penalty Focus I was doing human rights work at the UN and I think it’s fairly clear that the rest of the West is strongly opposed to the death penalty.

“I think at the UN level what’s holding things back is that the US continues to oppose any move for a global moratorium. But if the US was to flip, I think things could move very quickly worldwide.”

 

US DEATH PENALTY: FACTS AND FIGURES

 

EXECUTIONS: The United States has executed 1,385 people since the death penalty was made constitutional again in 1976.

WHERE: It is legal in 32 states and there are 18 non-death penalty states. The US federal government and military also impose the death penalty but neither has carried out an execution in over 10 years.

California has the highest number of death row inmates at 742, followed by Florida 410 and Texas 278.

The highest number of executions since 1976 has been in Texas 515, followed by Oklahoma 111, Virginia 110 and Florida 88.

Last year there were 16 execution in Texas; 7 in Florida and 6 in Oklahoma.

WHO: The first federal execution in 38 years was that of Timothy McVeigh, who was executed in 2001 for killing 168 people in the1995 Oklahoma City bombing. The federal government also plans to seek the death penalty for accused Boston Marathon bomber Dzhokhar Tsarnaev, whose trial is set for November 3, 2014

As of January 19, 2014, 59 people are on the federal death row for men at the Federal Correctional Complex in Terre Haute, Indiana; while the two women on the federal death row are at Federal Medical Center, Carswell in Fort Worth, Texas.

WOMEN: There were 60 women on death row as of January 1, 2014. This constitutes 2% of the total death row population. A total of 14 women have been executed since 1976.

JUVENILES: In 2005, the Supreme Court struck down the death penalty for juveniles. 22 defendants had been executed for crimes committed as juveniles since 1976.

RACE: In 96% of states where there have been reviews of race and the death penalty there was a pattern of either race-of-victim or race-of-defendant discrimination, or both.

METHODS: Most death row prisoners are now executed by lethal injection but some states still allow for execution by hanging, firing squad, electrocution or the gas chamber. A breakdown: Electrocution 8 states; gas chamber 3 states; hanging 3 states; firing squad 2 states

BOTCHED: From 1890 to 2010, a total of 8,776 people were executed and 276 of those executions went wrong in some way. Of all the methods used, lethal injection had the highest rate of botched executions—about 7%.

Since 1976 there have been at least 45 botched executions — there were 11 in the 1980s; 19 in the 1990s and 15 between 2000 and 2014, with three so far this year.

Five of the botched executions were by electrocution; one was in the gas chamber and the rest were through lethal injection.

President Barack Obama has ordered Attorney General Eric Holder to review the application of the death penalty in the US after the failed execution of Clayton Lockett in Oklahoma on April 29, 2014

EXONERATIONS: Since 1973, over 140 people have been released from death row with evidence of their innocence.

From 1973-1999 there was an average of 3 exonerations a year. From 2000-2011, there was an average of 5 exonerations a year.

SUPPORT: In an indication of lessening support for the death penalty, there were no executions last year in 25 of the 32 states where the death penalty is legal.

Recent Washington Post/ABC poll found 52% supported life imprisonment versus 42% for the death penalty.

The number of death sentences per year has dropped dramatically since 1999. Then there were 277 versus 79 last year.

COSTS: Enforcing the death penalty costs Florida $51m a year above what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida had carried out since 1976 that amounts to a cost of $24m for each execution.

The most comprehensive study in the country found the death penalty costs North Carolina $2.16m per execution over the costs of sentencing murderers to life imprisonment. The majority of those costs occur at the trial level.

In Texas, a death penalty case costs an average of $2.3m, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years.

Compiled from sources including Bureau of Justice Statistics: Capital Punishment 2013; Death Penalty Information Center; Death Penalty Focus, State statistics)

TIMELINE

1608: Captain George Kendall becomes the first recorded execution in the new colonies.

1632: Jane Champion becomes the first woman executed in the new colonies.

1700s: United States abolitionist movement begins.

1834: Pennsylvania becomes first state to move executions into prisons.

1847: Michigan becomes first state to abolish the death penalty for all crimes except treason.

1890: William Kemmler becomes first person executed by electrocution.

1907-1917: Nine states abolish death penalty for all crimes or strictly limit it.

1920s-1940s: American abolition movement loses support.

1924: Cyanide gas introduced as an execution method.

1930s: Executions reach the highest levels in US history, averaging 167 a year.

1950-1980: De facto abolition becomes the norm in Western Europe.

1953: Rosenbergs become first US civilians executed for espionage.

1966: Support for death penalty reaches all-time low with Gallup poll showing it at 42%.

1972: Supreme Court effectively voids 40 death penalty statutes and suspends death penalty.

1977: Ten-year moratorium ends with execution by firing squad in Utah of Gary Gilmore.

1977: Oklahoma becomes the first state to adopt lethal injection as a means of execution.

1982: Charles Brooks becomes the first person executed by lethal injection.

1984: Velma Barfield becomes the first woman executed since reinstatement of death penalty.

1986: Execution of insane persons banned.

1988: Executions of offenders aged 15 and younger at the time of crimes is unconstitutional.

1989: Eighth Amendment does not prohibit death penalty for crimes committed at 16 or 17.

1989: Executing persons with “mental retardation” is not violation of the Eighth Amendment.

1994: President Clinton signs Violent Crime Control and Law Enforcement Act expanding federal death penalty.

1996: President Clinton signs the Anti-Terrorism and Effective Death Penalty Act restricting review in federal courts.

1996: Last execution by hanging.

1999: Pope John Paul II on visit to Missouri calls for an end to the death penalty.

1999: Last execution in gas chamber.

2000: Illinois governor declares moratorium on executions.

2001: Oklahoma City bomber Timothy McVeigh is first federal prisoner executed in 38 years.

2002: Execution of “mentally retarded” defendants violates the Eighth Amendment’s ban on cruel and unusual punishment.

2003: Illinois governor grants clemency to all of the remaining 167 death row inmates in Illinois because of the flawed process that led to these sentences.

2004: New York’s death penalty law declared unconstitutional.

2005: Supreme Court rules that death penalty for those who had committed their crimes under 18 years of age was cruel and unusual punishment.

2007: UN General Assembly passes resolution calling for moratorium on death penalty

2007: New Jersey General Assembly becomes first state to legislatively abolish capital punishment since it was re-instated in 1976.

2008: Nebraska Supreme Court rules electrocution to be cruel and unusual punishment, effectively freezing all executions in the state.

2009: New Mexico governor repeals death penalty, replacing it with life without parole.

2010: Last US execution by firing squad is carried out in Utah.

2011: Illinois governor repeals death penalty in Illinois, replacing it with life without parole.

2012: Connecticut repeals death penalty.

2013: Maryland becomes 18th state to repeal death penalty.

2013: Poll shows death penalty support at lowest level in over 40 years.

Jan 16, 2014: Botched execution by lethal injection in Ohio of Dennis McGuire. Mr McGuire gasped for 25 minutes while the drugs slowly took effect.

Feb 11, 2014: Washington State governor suspends death penalty.

April 29, 2014: Botched execution by lethal injection in Oklahoma of Clayton Lockett. Mr Lockett died 43 minutes after the execution began of a heart attack.

July 16, 2014: Judge rules California’s death penalty violates US Constitution.

July 23, 2014: Botched execution by lethal injection in Arizona of Joseph Wood. Mr Wood gasped more than 600 times and took nearly two hours to die.

August-December 2014: 19 people scheduled for execution in seven states.


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