The Politics of Execution

An interview with Stephen Bright

By: Alex Roth

Stephen Bright is the Director of the Southern Center for Human Rights (SCHR) in Atlanta, Georgia. He is one of the foremost capital defense and appellate attorneys in the country, and one of the most outspoken and tireless opponents of the death penalty. I had the good fortune to work at SCHR for a short time this past spring to help with some death penalty cases, and I asked Stephen to share with New Abolitionist readers a few of his thoughts and experiences.

[New Abolitionist] Last year, Congress passed the Anti-Terrorism and Effective Death Penalty Act, severely limiting federal court review of death penalty cases. How do you think this is going to affect people sentenced to death?

[Mr. Bright] A writ of habeas corpus allows a person convicted in state or federal court to petition the federal courts to review the conviction or sentence on the grounds that it was unconstitutional. The Supreme Court once called this the "freedom writ" because it was one of the best chances a prisoner had to actually have the legality of his conviction seriously reviewed. For example, federal habeas corpus relief was granted to Tony Amadeo in 1988 when it was shown that the Georgia prosecutor in his case had secretly directed jury commissioners to under-represent African Americans in the jury pools. Amadeo had been sentenced to death by one of these rigged juries. William Alvin Smith, a mentally retarded youth sentenced to death in Georgia, got habeas corpus relief after a federal judge heard evidence of his retardation and determined that [Smith] hadn't even been capable of understanding his rights when they were read to him.

There are scores of other stories like these, but under the new law it's doubtful that any of these people would even get a preliminary hearing. The new law sets a one-year maximum limit on the time prisoners have to petition for review. Those who are in prison for more than a year before they can get a lawyer to take their case will be denied even a chance to present their claims. The law also prohibits federal courts from setting aside a state court conviction unless it violates federal law. In other words, most cases where the court or the prosecutor violated proper procedure or where facts that prove a person innocent were ignored or undiscovered will simply be beyond the scope of federal review. I think we have to ask whether fairness has become irrelevant to the processes by which the loss of life and liberty are determined. This law is going to be absolutely devastating to people sentenced to death.

So are people in America just more bloodthirsty? Why do you think the rush to execute has been increasing?

For the last thirty years, Americans have been told that the answer to the crime problem is longer prison terms, harsher conditions of imprisonment, greater use of the death penalty, less due process, and less judicial review. Politicians haven't even questioned the wisdom of these measures - whether they constitute an effective crime control policy or whether they will actually make Americans safer in their homes and on the streets. Instead, politicians have engaged one another over the question of who is the "toughest." Those who promised "three strikes and you're out" - life imprisonment for people convicted of three felonies - were quickly topped by those promising "two strikes and you're out." The Clinton administration has even issued a "one strike, you're out" rule for people who commit certain crimes while living in public housing. Those who promised to imprison were topped by those who promised to make conditions in prisons even harsher by removing exercise equipment, eliminating educational and vocational programs, and even restoring chain gangs. Those who promised the death penalty for some crimes were topped by those who supported the death penalty for even more crimes.

And politicians have delivered on their promises. The United States now incarcerates a higher percentage of its population than any other country in the world, and more people were executed in America last year than in any year since the reinstatement of capital punishment in 1976. It's in this context that you have to look at the greater attacks on the rights of prisoners and the increase in the death penalty. After the non-stop assault of "tough on crime" rhetoric for the past few decades, many people have come to believe that this is the only way they will be safe.

So you think that the political process has had a very negative effect on the debate about crime and the death penalty?

Absolutely. Not only have politicians told everyone that the death penalty is the only way to really fight crime, but political attacks have prevented even those few judges who actually want to do as little a thing as just uphold the law from being able to do what's right.

For example, in Tennessee in 1996, the Republican Party launched an all out attack to defeat state Supreme Court Justice Penny White in her re-election campaign. The Republicans mailed a brochure to voters describing three cases to show that Justice White "puts the rights of criminals before the rights of victims." It described the case of Richard Odom as follows: "Richard Odom was convicted of repeatedly raping and stabbing to death a 78-year-old Memphis woman. However, Penny White felt the crime wasn't heinous enough for the death penalty - so she struck it down." What the brochure didn't reveal was that all five members of the Tennessee Supreme Court agreed that there had been at least one legal error in Odom's case which required a new sentencing hearing. And they didn't set Odom free, they just affirmed his conviction and sent the case back for a new sentencing hearing. Justice White hadn't even written the court's opinion in that case, but voters were led to believe that she had personally prevented the state from carrying out the execution. Needless to say, she was defeated in the election.

And there are other types of political attacks going on right now within the legal system. In New York, which just recently brought back the death penalty, the Governor demonstrated his support for capital punishment right from the beginning by attacking a prosecutor for refusing to seek the death penalty in a particular case and removing him from the case. And when a federal judge in New York suppressed drugs seized by the New York City police in an illegal search, the Republicans called for his impeachment, while the Clinton White House suggested it would ask for his resignation if the judge did not reverse his ruling. He did. These kinds of constant political attacks make it that much harder to get a fair hearing in our criminal justice system.

The second half of our interview with Stephen Bright will appear in the next issue of the New Abolitionist.