III) The case study of Texas

In order to analyze the faults of the judicial process in the South, we will use the case study of Texas to prove the hypotheses already proposed concerning an unbalanced criminal system. I chose the example of Texas as a case study for various reasons. First of all, from the perspective of a French person, the State of Texas is in large part a grand symbol of American society, and of its conservatism. One could consider this emblematic of “stereotypical America” and all the prejudices presupposed or included therein. The state of Texas is considered to be “the capital of executions”[65] by Sam Millsap, former prosecutor who is now pro-abolition; and by A. Kaspi as, “the barbarous, sanguinary and unfair state, and the emblematic representation of the American society.”[66] George W Bush, who was governor of the State from 1995 to 2000, “boasts to be the champion of executions.”[67] He openly associates himself with death penalty practices. Secondly, throughout my researches, readings, and studies, I noticed that Texas is very radical and strict in the application of death penalty. Indeed, it is rather obvious that their system of criminal law is less balanced and more biased than others.

A. General description of the State

1) Geography

With an area of 261,797 square miles (678,051 km²) and a population of 23.5 million inhabitants, the State is second-largest in territory, behind Alaska, and population, behind California. The State of Texas also has the longest common border which it shares with Mexico. The biggest cities are Austin (the capital), Houston, San Antonio, Dallas, Fort Worth and El Paso.

2) Demography

In 2005, the State had an estimated population of 23,507,783 inhabitants in 254 different counties. As in the rest of the U.S., the population of Texas grows considerably (by 12.5% per year) because of a positive birth rate, but also because of immigration from outside the United States (resulting in a net increase of 801,576 people pre year), and migration within the country (producing an increase of 451,910 people). As of 2004, 15.6% of the population is composed of foreign-born citizens (3.5 million people), including an estimated 1.2 million illegal immigrants (that is to say 1/3 of the foreign-born population in comparison with 5.4 percent of the total state population).

According to the 2005 US Census, 84% of the population of Texas is white, 12% is Black or African American and the 4% remaining finds its origins elsewhere. People from Hispanic origin account for 35% of the population; this number is also growing quite considerably with all the illegal immigration that takes place.

The majority of Texans live in urban areas. About half the State's population resides in either the Dallas–Fort Worth, or Houston, metropolitan area. Considering the vastness of the State, let’s try to analyze the division of these different communities according to region: the east, north and center of Texas, is inhabited by white people of British, Irish and German descent, with a strong White Protestant heritage; African Americans are concentrated in Dallas and Houston, as well as in eastern parts of the state where the cotton plantation culture was most prominent before the American Civil War; and Hispanic people dominate the southern, south-central, and western regions, and comprise a significant portion of the residents in San Antonio, Houston, and Dallas. In this way, the composition of the population in urban Texas is diverse, to say the least.

3) Criminality

The Nation’s most populated region, the South, accounted for 36.1 percent of the total population in 2004. Forty-three percent of estimated murders were reported here, topping out at 6,942. What is more, in 2004, the southern states tallied a rate of 6.6 murders per every 100,000 people, a 5.0% decline from the 2003 rate.

In the year 2000, Texas had a total Crime Index of 4,955.5 reported incidents per 100,000 people. This ranked the state as having the 8th highest total Crime Index in the U.S. In 2005, the state recorded 6.2 murders per 100,000 people, in comparison to the national rate of 5.6[68] (ranking 16^th in the category of murder rate[69]). After having reached a peak in 1980 with 16.9 murders per 100,000 inhabitants, this rate dropped to 5.9 in 2000; that is to say it was at its lowest in 40 years, and the rose again to 6.2 in 2005. If this rate shows a decrease in the 1980-2005 period, it is because of the population growth which occurred during this time. In fact, the number of murders continuously rose from 1960 to 1991, passing from 824 to 2,652 murders, and slowly fell to 1,407 murders in 2005[70].

In certain Texan cities, murder rates were much higher than the rate calculated for the state as a whole; that is to say that certain cities among others recorded much rates than others. In 2005, in Houston, there were 334 homicides, for a murder rate of 16.3 per 100,000 inhabitants. And Dallas had the highest homicide rate of the state, with 16.4.

It is difficult to give an explanation of such violence, whether speaking of Texas or even the country as a whole. As we have seen before, various explanations have been proposed: rampant bearing of firearms, drug use, or simply ethnic and racial tension.

B. Politics and justice

As we previously mentioned, each state has its own judicial system, criminal law, court structure, appeal system. Let’s first study the political and court structure of the State.

1) The executive power

We will focus our analysis of the executive branch on the role it plays in the death penalty process. Concerning death penalty, the Governor can only overturn a death sentence upon the positive recommendation of the Texas Board of Pardon and Parole. The Governor may choose to ignore the Board's recommendation for clemency and carry out an execution just the same. However, the opposite is not possible—the Governor cannot commute or overturn a sentence if the Board does not recommend such. The only unilateral option the Governor has is to issue a 30-day stay of execution.

2) Court Structure of Texas

In the following document is presented the Court Structure of the State of Texas. In homicide cases, the trial starts in a District Court, and can then move to a Court of Criminal Appeal.

Fig. 26) Court Structure of Texas[71]

C. Death penalty in Texas

The State of Texas lays the unfortunate claim of having the highest record of executions, with 392 since 1976. This number is far ahead of Virginia, the second on this list with 98 executions. Death penalty is one of the fundamental aspects of the Texas’ criminal law. It is deeply rooted in the peoples’ minds, as well as their collective conception of normal and correct justice. It is very rarely questioned by the Court but is increasingly discussed amongst intellectuals, journalists, and in different associations and NGOs (those which exist for the purpose of defending the rights of inmates, basic Human Rights and, more generally, social justice. The case of Texas, as we suggested before, is rather the most relevant case concerning the unbalanced judicial system of the United States.

Texas employs death penalty more often, with the largest number of executions, and an impressive number of death row inmates. In addition, their application of capital justice appears the least regulated than in any other state. Furthermore, while ethnic minorities are more heavily represented in Texas than in the national average, there are also more women in the Texan death rows. There have been 160 women sentenced to death in the across the country since 1976. The one state alone which has condemned the most is Texas, with 18. As of 2007, there are 51 women in death row awaiting execution, 10 of which reside solely in the state of Texas. In addition, since death penalty has been reenacted in the United States, 11 women have been executed, among which there have been 3 in Texas.

1) Texan governors and death penalty

In order to determine whether death penalty really is a more central point in Texas criminal law, let’s study the policies of recent and past governors of the state.

Among the five last governors of Texas, two were from the Democrat Party: Mark White (from 1983 to 1987) and Anne Richards (1991-1995), and the three others were Republicans: Bill Clement (1987-1991), George W Bush (1995-2000) and Rick Perry (since 2000). Just the same, the number of executions has always been larger here than in any other state.

a) George W Bush

George W Bush executed more inmates than any other governor in modern American history in a sole mandate. During his four-year stretch, 153 inmates were executed, in comparison with 18 during Mark White’s four-year mandate or 16 during that of Bill Clement.

George W Bush, now President of the United States, also succeeded in passing a very permissive law, authorizing rifles in public places—even schools and hospitals. In the mean time, as a governor, he had a very repressive attitude, in extending little or no hope at all to death row inmates for a possible pardon.

Karla Faye Tucker case Karla Faye Tucker’s case proved his fervent attachment to death penalty. Indeed, despite the interventions of the European Parliament, the Pope, the United Nations, the abolitionist organizations and some American conservative Christians, Governor George W Bush refused to pardon her.

Critics like Helen Prejean, in ‘The Death of Innocents: An Eyewitness Account of Wrongful Executions ’, published December of 2004, argue that he failed to give serious consideration to clemency requests.

b) Current Governor Rick Perry

Perry supports the death penalty as do a large majority of Texans. Governor Perry doesn't seem to take notice of the criticism coming from human rights organizations, and rarely uses his authority to stay scheduled executions for one month.

Under Texas law, the Board of Pardon and Parole must make a recommendation to commute such a sentence, which the Governor is free to ignore, but, as has been already stated, the reverse is not true: if the Board does not make such a recommendation the Governor, then, cannot commute the sentence. The only power the Governor has is to issue one, 30-day reprieve (of which, it is said, Perry has not taken advantage).

Frances Newton case In 2005, Frances Newton's appeal for a commutation of her death penalty was declined, although some allege that there was insufficient evidence to convict. The Board of Pardon and Parole did not recommend a commutation, thus Perry could not do so himself, and chose not to grant the one-time reprieve.

2) Capital crimes in Texas

A bill making child rape a capital crime in some instances is currently under consideration of the state’s Supreme Court.

But today, only homicides are capital crimes under Texas state law. This includes murder under nine different circumstances: murder of an on-duty public safety officer or firefighter; murder in the course of committing or attempting to commit a felony offense (such as kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terrorist threat); murder for remuneration (both the person who does the actual murder and the person who hired them); murder during prison escape; murder of a correctional employee; murder by a state prison inmate who is serving a life sentence for any of five offenses: murder, capital murder, aggravated kidnapping, aggravated sexual assault, aggravated robbery; murder while incarcerated with the intent to establish, maintain, or participate in a combination or in the profits of a combination; multiple murders; murder of an individual under six years of age; murder of a person in retaliation for, or on account of, the service or status of the other person (a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court).

Furthermore, under the Texas state law, a defendant can also be sentenced to death for a felony in which he/she was not responsible for the murder.

3) An alternative: Life Imprisonment

Under Texas state law, as in the majority of the retentionist states, there is an alternative to death penalty: life imprisonment. Among the 38 retentionist states, 35 offer “life without parole” (LWOP) which means that the inmate will never have the opportunity to be released from prison. In Texas, for offenses committed in 2005 or thereafter, any person found guilty of the offenses previously cited receives a minimum sentence of life imprisonment without parole. For offenses committed before to 2005, the minimum sentence is life with the possibility of parole after 40 calendar years.

4) The principal actors of the judicial machine

a) The District Attorney

Known under many different titles (County Attorney, District Prosecuting Attorney, Solicitor, DA, or Prosecutor), he holds the accusation, and then makes the decision to pursue a suspect or not.

In France, the prosecutor seeks the truth and has to show the evidences at charge and at discharge, whereas under United States law, he represents the general interest. This goes to say that in the U.S. a prosecutor is not allowed the same objectivity, as the defendant is accused of having committed a crime, and it is his job to prove it.

The prosecutor is elected by the people meaning that his campaign may very well resemble that of any other campaign model in the states: “In order to be elected, you have to satisfy the criteria that the majority defined, explicitly or implicitly.”[72] If they are jurists, they are above all politicians, and so they are Republican or Democrat. Thus, a crime can be sanctioned differently according to the prosecutor.

According to Amnesty International, in New Orleans the DA requests death penalty three times more often when the inmate is black than when he is white, and even more frequently when the victim is white.

b) The judge

They have the capital role of designating a court appointed lawyer for poor defendants. This choice can be very deciding as to the outcome of the trial, as most of the time the lawyers elected appear not to be competent, to say the least. Judges tend to be former prosecutors likening the possibility of their being pro-death penalty.

The judges are elected in much the same way as are the DAs. This election provokes a central debate, as many cases claim that they, “…care more about their electors than about the defendants,”[73] themselves.

c) The Jury

In Texas, there is the Little Jury which gives the verdict; it is composed of 12 members, and are charged with carrying out the verdict and the sentence. The members also have to determine a number of "special issues", including the "future dangerousness" question, or whether the defendant will pose a future danger to society if allowed to live (even in prison).

Most of the debates about the fairness of the criminal trials are about the Jury, its selection and its composition. According to Amnesty International, at least one in five of the African Americans executed since 1977 had been convicted by all-white juries[74]. Furthermore, In Colette Berthès’s book, “La machine à tuer”, dealing with the case of Odell Barnes, the author denounces the composition of the jury: “The twelve jury members were white. Four black jurors were excluded: one because he was opposed to death penalty, the other three without any explanation”[75].

The selection of the Jury is very controversial. There is first a list of American citizens, at least 18 years of age, who have been living in the area for a minimum of one year. This list is randomly composed; people can be excluded only for mental retardation, or in certain cases of physical handicap. At the second round, those selected are interviewed for days or even weeks by both the defense and the prosecution. The questions are precise and redoubtable, because each litigant desires to form a jury favorable of his or her respective cause. As we have seen before, both parties can decline an unlimited number of members, by providing reasons. However, there are also a limited number which can be denied without specifying why. Of course, if the accused is defended by a court appointed lawyer, the prosecution will be able easily to choose a death penalty-friendly jury. It is obvious that a jury must adhere to the law of the jurisdiction. Conversely, a jury could very well not support death penalty; that is to say that all state-appointed lawyers do not end up electing juries who are always in favor of capital punishment. According to Robert Bryan, the current defense of Mumia Abu Jamal, this system of jury selection is on of “the main issues to eliminate in the United States judicial system”[76].

In 2003, the Supreme Court held that Miller-El should have been allowed to present evidence of race discrimination in jury selection during his federal appeals. In that case, the evidence of an historical discrimination by the prosecutor’s office was particularly studied. "Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the district attorney's office in the past was suffused with bias against African-Americans in jury selection," Justice Anthony M. Kennedy wrote.

The Ronald Chambers case[77] Ronald Chambers, a black man, was condemned to death in 1976 for a murder committed during a robbery. This decision was reversed in 1986 due to discriminatory jury selection by the state. He was sentenced to death in another trial and to this day is still awaiting his execution.

5) Comparison of costs

It is hard to believe that problems of money can be discussed in death penalty cases in the sense that a human life is at stake. However, this argument is often used by members from both sides of the spectrum. Partisan groups like to pretend that Life without Parole costs more than death penalty ($3 million for LWOP compared to $1.9 million for death penalty[78]). However, many studies have proven that executing an inmate costs more than keeping him alive in a cell.

In 1998, the Sacramento Bee demonstrated that Californian taxpayers spend $90 million a year on death penalty resources. According to an article[79] from Dallas Morning News, published March 8, 1992, in Texas, a death penalty case costs an average of $2.3 million, or about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. Abolitionists maintain claims that death penalty costs taxpayers a great deal of money, and that this money should be spent differently. “If we take an average $2.5 million per inmate, and that we multiply it by [3350] (death row inmates), it makes a total of $[8,375] million, an amount which, according to experts, could be used more efficiently.”[80]

In ‘La peine de mort aux Etats-Unis’, A. Kaspi details the expenditures resulting from a capital case in a District Court (in first instance). It includes about $20,000 for the prosecutor, about $500,000 for the lawyers, and the trial as a whole costs about $770,000 (to pay the witnesses’ travel and housing, and security during the entire process…). Multiple appeal processes are even more expensive.

6) The Clemency process

a) In the United States

For Federal Death Row inmates, the President alone possesses the power to grant pardon. At the state level, there are five different processes. In 14 states, the governor has the sole authority of pardon; in 8 states, including Texas (plus Arizona, Delaware, Florida, Louisiana, Montana, Oklahoma and Pennsylvania), the governor must have the recommendation of clemency from a Board of Advisory Group. In 10 states, the governor receives a non-binding recommendation of clemency from a Board of Advisory Group, then, in three states, a Board of Advisory Group determines clemency all by itself. And, finally, in 3 states, the governor sits on a Board of Advisory Group that determines clemency.

Since 1976, 229 death row inmates have been granted clemency for humanitarian reasons. Ultimately, these cases have also included doubts as to the defendant's guilt, or conclusions of the governor regarding the death penalty process.

b) Clemency under Texas state law

In order to grant clemency, the State Governor must have the Board of Pardons and Paroles recommendation. The Governor has full discretion to either accept or reject the Board's recommendation on clemency. The Board of Pardon and Paroles is dedicated to give recommendation to the governor in order to grant executive clemency. It includes full pardons, conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves. Since death penalty has been re-enacted in Texas, in 1974, clemency has been granted only two times. This particular institution has been heavily criticized by different associations of defense.

The Leonel Herrera case[81] In 1992, Texas death row inmate Leonel Herrera uncovered startling new evidence of his innocence. Attorneys for Texas opposed his appeal to the US Supreme Court, arguing that late claims of innocence should be resolved by a clemency hearing. The Supreme Court agreed, finding that late evidence of innocence does not ordinarily entitle a defendant to a new legal hearing. "Clemency", the Court stated, "is the historic remedy for preventing miscarriages of justice". Three months later, Texas executed Leonel Herrera, after the Board of Pardons refused to convene a clemency hearing.

Unfortunately, the members have not enough time to look at every single case which passes (only 5 to 15 minutes are spent for each review). “There is no way 17 people can look at over 150,000 cases for parole, it's just not possible.”[82] There is no face-to-face interview in the process. “How can anyone vote on whether a person is ready by reading 'paper'?” The major reason for denying parole is ‘Nature of the crime’ which cannot be changed, whereas the nature of the inmate can. It would be more logical to consider the comportment of the inmate in the process of parole than simply reading a few figures and then advancing to the next stack of papers in need of analysis.

7) Reasons for high execution rates

a) Legal reasons

There are a variety of proposed legal and cultural explanations as to why Texas has more executions than any other state. First of all, we have seen that Texas' judges are elected by the people of the State, rather than being appointed by another, separate authority. As Texas' political tone is generally very conservative, judges find it advantageous to take a harsh position on crime in order to ensure reelection.

The quality of lawyers appointed by the court has often been found to be substantially low for capital cases in Texas. When the accused are unable to afford their own representation because of economic problems, they must resort to court-appointed lawyers. In the majority of these cases, state-selected lawyers have been proved nothing short of incompetent.

In addition, federal appeals in Texas, Louisiana and Mississippi are made to the United States Court of Appeals for the Fifth Circuit. Michael Sharlot, dean of the University of Texas at Austin Law School, found the Fifth Circuit to be a "much more conservative circuit" and "more deferential to the popular will" than the Ninth (which exists in the Western states where appeals can be more easily overturned).

b) Cultural reasons

Aside from the “legal reasons” stated above, it has been argued that there are cultural reasons which may account for higher numbers of executions in Texas as well. In the book The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990, the authors purport that the execution rate in Texas is a symptom of the "cultural tradition of exclusion" in the South of the United States. Executing—just as lynching was in the United States colonial past—is a way to continue to "dehumanize" and "exclude" certain social groups. In addition, according to the authors of “Vigilantism, Current Racial Threat and Death Sentences”, there has been an inverse relationship between the number of executions and lynchings: as the number of lynchings declined, the execution rate went up.

D. Main debates on death penalty

Apart from the organization and the progress of the trial itself (which we examined earlier), death penalty arouses still, more, an impressive number of debates. On the contrary to the sort of arguments that could take place here in Europe, however, issues of discussion in the United States are not always ethical ones. Whether it is just or right to kill somebody, regardless of what he or she has done, is not often questioned. Indeed, there exist other debates pertinent to the subject and in the foreground of the matter. Nevertheless, those which are more frequently examined, and which ultimately cause the judicial ink to flow, are not always the “right ones” in terms of humanitarian interests and the great social good. We will discuss some of them—without the pretension of definitive answers or solutions.

1) Arbitrariness and discrimination

Does death penalty punish the worst of the worst offenders? Is a prisoner more likely to be sentenced to death because of his race or gender? Does the race of the crime victim affect the application of death penalty? These are the most frequent questions regarding death penalty. They divide the public opinion and provoke intense debates. As we have seen previously, if the African American community represents about 12% of the national population, they account for 42% of the current death row inmates. Other figures previously presented—such as the race of the victim, or economic disparities—show the existence of a racial, social and economic discrimination.

Such affirmations are regularly denied and refuted by pro-death penalty organizations. Nonetheless, studies have proven the existence of a racial bias strewn throughout the entire judicial process in Texas, as well as in many other states. Since 1976, those most likely to end up on death row, regardless of race, have come from the most disadvantaged segments of the population. In fact, it is only very rarely that murderers from privileged backgrounds receive death sentences. Indeed, 97% of the death row inmates are indigent.

In The rope, the chair and the needle, the authors Marquart, Ekland-Olson, and Sorensen denounce that: "In no case (in the post-Furman period in Texas) was an Anglo offender who killed an African-American victim charged with and convicted of capital murder."[83]

In 1987, in McCleskey v. Kemp, the Supreme Court held that even if a defendant could show that racial prejudice had played a systemic role in capital sentencing in his state, racial discrimination did not violate the Constitution unless the defendant could prove that the state legislature or a decision maker had acted with discriminatory intent. Elsewhere, one of the main reasons why the former Governor Glendening instituted the Maryland moratorium on executions in 2002 was because of his concern about racial bias in Maryland’s death penalty system.

2) Representation

Can a defendant be sentenced to death because of a bad representation? How can a poor inmate ensure a fair trial and adequate defense?

Representation during a trial—or lack thereof—is one of the most striking and crucial faults in the justice system today. The United States Supreme Court long ago decided that if a suspect was too poor, he could benefit from the services of a lawyer appointed by the court. But this extends only as far as the case for trial and the first appeal. Such a right does not exist in the post-conviction phase. There are lawyers who make it obvious to the jury that they have no belief in their clients, lawyers who fall asleep during trial, lawyers who do not prepare properly, and lawyers who are routinely denied the necessary funds to investigate the case.

The Calvin Burdine case During Calvin Burdine’s trial, the lawyer fell asleep as many as ten times during the trial. Appeals were first turned down on the grounds that the constitution does not say anything about the lawyer needing to be awake during the trial, and that the lawyer had not missed important parts of the trial.

In order to defend a case effectively, the defense counsel must invest hundreds of hours in preparation, hire investigators and experts such as mental health professionals and forensic scientists, and have a thorough knowledge of the highly specialized body of death penalty law. Competent representation at the different stages of a capital case—trial, appeal, and post-conviction review—requires specialized training, significant experience, and intense preparation that most court-appointed lawyers do not have.

Most of the time, court-appointed lawyers have not enough funds or time to prepare a good defense. There is no equality of arms between the prosecutors and the lawyers. Whereas prosecutors are paid by the government and have as much time as they need, the defense lawyer does not have a good salary. In addition, DNA tests have to be paid for by the defense and it is very expensive. Thus, a poor defendant cannot afford a good defense.

The movie, Last Dance, deals with a female death row inmate who is accused of two murders. Even when there is little to no doubt of her ultimate guilt, her lawyer, nonetheless, fails to bring to the table the only argument in her favor: her drug addiction.

3) The deterrent effect

Does the death penalty deter murder? Does it deter murder more than Life Without Parole? Both the retentionist and the abolitionist groups use the argument of deterrence in their favor. It is thus difficult to say whether the awareness of death penalty in the minds of a given populace deters people from committing murder; and, what is more, the figures that are available regarding this matter contradict themselves. However, many examples of new-abolitionist states or countries (such as Canada) prove that, following the abolition, the tendency of the homicide rate is not to rise, but, on the contrary, to drop. The states where death penalty is the most widely used (in the South for the majority) are those where the homicide rates are the highest[84].

4) Miscarriages of justice and innocent in the death row

Are there innocent people on death row and why? Has an innocent person ever been executed? How might innocent people end up on death row? Have any death row inmates in the past been freed on this account?

Examples of miscarriages of justice such as Leonel Herrera’s case (see on page 63) are many though, fortunately, are becoming fewer and fewer. The main causes for miscarriages of justice are: indigence of the death row inmates, inadequate or botched defense, drifts of the police or justice, false or lacking testimonies, racial harm.

The Randall Adams case Randall Adams, whose case drew national scrutiny with the release of the documentary film The Thin Blue Line, was wrongly convicted and sentenced to death for the murder of a Dallas Police officer. Adams was freed after the real killer, David Harris, confessed on tape to the crime.

Since capital punishment was reenacted in the United States in 1976, 124 people have been released from death row after having been cleared—including 8 in Texas (after Florida and Illinois accounting 21 and 18 innocents respectively). According to the Innocence Project at Cardozo Law School, since 1976, one innocent person is freed for every seven people executed. Before 1998, there was an average of 2.96 releases per year. Since then, this figure has increased considerably, today reaching 7.6. The average time spent locked up for the freed inmates is 9.3 years.

Among the 124 released prisoners, 62 were black or African American, 49 were white, 12 were Hispanic, and one is from another race. These figures explain the difference between the percentage of black people in the death row population and the percentage of black inmates executed. They also show that while the number of exonerated African Americans is higher that those of other racial or ethnic groups, it does not necessarily mean that they are granted greater justice than the others: more of them are sentenced to death to begin with; and among those receiving capital punishment sentences, it implies that they are more easily sentenced to death despite actual innocence. This confirms yet again the existence of racial discrimination in criminal trials. And, off course, if some death row inmates of the past have been freed, this goes to say that still more may have been executed despite their being innocent. Indeed, many executions were carried out in spite of serious doubts concerning inmates’ culpability.

5) DNA testing

In 15 out of 124 cases of freed or exonerated inmates, DNA testing has played a substantial role in establishing innocence. If DNA testing has been so instrumental in exonerating several inmates, we must wonder why all states do not allow it (or even demand it as an compulsory element of the process). It seems that under state law, it is difficult to obtain post-conviction DNA testing because of strict time limits on introducing newly discovered evidence. In many cases, the biological evidence has been either lost or destroyed.

6) The position of the Church

The Catholic Church used to favor death penalty but when Pope Jean Paul II arrived, it became the first international organization to oppose it. Nowadays, the majority of religious groups and spiritual leaders refute death penalty. However, the members of those groups are not always entirely opposed to it.

The majority of religious groups and spiritual leaders refute death penalty. However, members of these groups are not always opposed to it. In addition, the Bible and, more generally, the Church, have a paradoxical position on death sentence. The Bible states just the same that justice lies in the conviction: "An eye for eye, a tooth for tooth" (from Leviticus 24:20; also Exodus 21:24) or even "Eye for eye, tooth for tooth" (from Leviticus 24:20; also Exodus 21:24) and “thou shall not kill”. Consequently, both sides of the debate, abolitionist and retentionist groups alike, fall back on the argument of religious justification as support or evidence of their side’s respective morality.

The Catholic Church fights, above all, for the right to life (which explains its position on abortion) and for forgiveness. In the movie Dead man walking[85] (1995), adapted and directed by Tim Robbins from the book of the same name by Helen Prejean, a sister struggles to save a death-row killer’s life and tries to make him seen as a valuable human being.

The Christian Community San’ Egidio is very active in the abolitionist struggle, notably helping local associations, or creating the project, “City for Life”, which is a symbolic way for cities to participate in the fight. Every 30^th of November, all around the world, 600 capitals and other big cities light their monuments in demonstration of their opposition towards death penalty. The date corresponds to the day when the Duke of Tuscany abolished death penalty. This was a landmark date, as it was the first time in history that a territory had collectively succeeded in abolishing death penalty.

7) Public opinion

Throughout history, American citizens have almost always favored death penalty. As shown on the following spreadsheet, the “no” has never reached a majority. Nevertheless, we have seen substantial variance concerning the number of death penalty supporters dating as far back as 1953. The figures have, nevertheless, always been above 50%, with the exception of the year 1957. The Rosenbergs’ which took place during this time may be the reason why the public opinion dropped. Indeed, Julius and Ethel Rosenberg, American Communists accused of passing nuclear weapons secrets to the Soviet Union, were executed in 1953. Their story received international attention and across the country, the people were not in favor of their execution.

Elsewhere, support for death penalty has been stable at around 65% during the second part of the nineteenth century with a net increase in the 1990s. It reached 80% in 1994. Since then, the public opinion has stabilized at around 65%.

Fig. 27) Attitudes towards the death penalty for persons convicted of murder[86]

Depending upon the exact question asked, 65 to 80% of adults today are in favor of the death penalty. When asked, "Are you in favor of the death penalty for a person convicted of murder?" 67% of Americans favor the death penalty; only 5% have no opinion at all. The remaining 28% are against capital punishment[87].

But almost all public opinion pools demand simply whether the subject is in favor of or against death penalty. One exception was an ABC News/Washington Poll released on May 2, 2001. This particular survey offered alternatives to execution in their polling questionnaires. The results showed a public ambivalence towards the continuation of death penalty. When asked whether or not they supported death penalty, the public responded 63% in favor. But if Life Without Parole is offered as an option: 46% favored the death penalty; 45% favored life without any chance at parole.

According to the Death Penalty Information Center, it would be 47% of people who prefer death penalty and 48% who prefer LWOP. As we can see in the following pie chart, Americans are closely split between death penalty and Life without Parole.

Fig. 28) Support for life without parole (2007)[88]

In Texas, public opinion polls show that the support for death penalty is much higher than the national average: 73%. Such a rate could be explained by the same reasons that there is such an significant homicide rate in Texas, and more generally in the South. These explanations were previously presented in part II, C, 4.

It is interesting to note that, according to a poll taken by police chiefs (Figure 29), death penalty is considered a last resort as far as attempts to reduce violent crime. According to them, there are more efficient ways such as reducing drug abuse, amelioration of the economy, or even simplification of the judicial system.

Fig. 29) Police Chiefs Place Death Penalty Last in Reducing Violent Crime[89]

8) Abolitionist movements and related institutions

Numerous social movements struggle at national and international levels to abolish death penalty in the United States and throughout the world as a whole. Abolitionist associations, institutions or even cities are involved in the struggle. They have different ambitions, as well as means of action, and have already made an important impact in past affairs. Sometimes, spontaneous social movements composed of people from different horizons rise up to protest. At each execution scheduled, people gather in order to make their grievances heard. Pro-abolitionists congregated in 1990 and 1997, when inmates had reportedly caught on fire during electric chair execution attempts. They came together again in 2000, when yet another inmate began to bleed from the nose. These movements lead to the abandonment of the electric chair as a means of capital punishment. It was replaced by lethal injection, considered as a solution, and at the same time more humane and more reliable. There are just the same many associations dedicated to providing adequate defense to death row inmates, seeking to guarantee social justice, and equality therein.

Some of the associations and NGOs ask for a simple and total abolition (like Amnesty International), others try to offer a good defense to defendants (the American Bar Association), and finally, some of them concentrate on information and communication in order to arouse people’s awareness (National Coalition to Abolish the death Penalty, Ensemble Contre la Peine de Mort, Texas Coalition to Abolish Death Penalty). There are many associations dedicated to providing good defense to death row inmates, in order to guarantee social justice, and equality therein. Groups such as the American Bar Association struggle to ensure that persons facing capital punishment receive competent and adequately funded counsel, that trials and appellate review are fair and thorough, and that racial discrimination ceases to be a factor in the application of death penalty.

In The life of David Gale[90], a popular and well-respected professor finds himself on death row for the rape and murder of a woman. He is executed and thereafter proved innocent, in order to demonstrate the faults of the judiciary machine.

Mumia Abu Jamal case This case, considered as very political is the “second most symbolic case” after the Rosenbergs’, according to their son. Mumia Abu Jamal, a black defendant, is seen as the ‘Voice of the voiceless’. In 1985, he was accused of the murder of a policeman in Philadelphia. Because he was a member of the Black Panthers and an aversive journalist, his case was botched and R Bryan, his principal lawyer denounced a ‘judicial offence and manipulation from the justice and the police’. Giordano, the police officer who played a big role in Mumia’s case was known to be racist and he was convicted of corruption later. Twice in 1995 and 1999, international movements and media coverage helped to ensure the re-examination of Mumia’s case. Consequently, his life was saved. After having spent more than 20 years on death row, Mumia had associations and NGOs aiding in the review of his case. The French city of Saint-Denis even nominated him as an ‘honor citizen’ and named a street after him.

Educated movie-makers and journalists are often involved in the struggle and try to arouse people’s awareness.

The European Union, which imposes abolition to the new members, is totally opposed to capital punishment and often urges the United States’ government to abolish death penalty. They also created Protocol No. 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which stipulates in the first article, “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”[91]

Within the United Nations, the Office of the High Commissioner for Human Rights wrote a comment about the Right of Life, saying that “States parties are not obliged to abolish the death penalty totally, they are obliged to restrict the application (…) to the "most serious crimes" (…) [it] should be a quite exceptional measure..”