"I hereby sentence you to death."
The words of Judge Clifford B. Shepard filled the courtroom in Jacksonville, Fla., on Oct. 27, 1976. Shepard was sentencing Clifford Williams Jr., whom a jury had found guilty of entering a woman's house with a spare key entrusted to him and then shooting her dead from the foot of her bed.
It was a bizarre verdict, for forensics showed that the shots had been fired from outside the house--through a window, breaking the glass and piercing curtains and a screen. Moreover, at the time of the shooting Williams had been attending a birthday party, an alibi confirmed by many in attendance.
That didn't matter, for Williams was an indigent black man with a public defender who didn't call a single witness. The jury didn't realize that he had an alibi or that the bullets had come from outside the house.
The sentence came three months after the Supreme Court had restored the death penalty in the United States, in the case of Gregg v. Georgia, saying that new safeguards meant that capital punishment would be applied only to the worst of the worst. "No longer can a jury wantonly and freakishly impose the death sentence," Justice Potter Stewart declared in the majority opinion.
Fast forward four decades. Williams, now 76, was freed in March along with his co-defendant and nephew Hubert Nathan Myers; as they emerged from prison, two frail and elderly men, Myers knelt and kissed the ground. They had each spent 42 years in prison for a murder they did not commit.
Williams survived because the Florida Supreme Court had overturned his death sentence by a single vote, in a 4-3 decision, back in 1980, effectively giving him life in prison instead. Then in 2016 Jacksonville elected a reformist prosecutor who reviewed this old case and concluded, "There is no credible evidence of guilt, and likewise there is substantial credible evidence to find these men are innocent." A judge, noting that she had been only 3 years old at the time of the convictions, finally released the men from a justice system that had treated them wantonly and freakishly.
President Donald Trump is now calling for expanding the death penalty so it would apply to drug dealers and those who kill police officers, with an expedited trial and quick execution. A majority of Americans (56 percent, according to Gallup) favor capital punishment, believing that it will deter offenders or save money and presuming that it will apply only to the vilest criminals and that mistakes are not a serious risk.
All these assumptions are wrong.
The great majority of people executed are guilty. They have frequently killed with the utmost savagery.
Scotty Morrow, a black man from
Georgia, fought with his ex-girlfriend, Barbara Ann Young, and, as her 5-year-old son watched, shot her in the head and killed her in 1994.
Morrow also shot dead another woman in the house, Tonya Woods, and shot a third, LaToya Horne, in the face. Horne was able to stagger down the road before collapsing. She suffered permanent injuries.
Not surprisingly, Morrow was sentenced to die.
He grew up in a violent home where he was raped and beaten as a child, and never received mental health support to deal with his trauma; that justifies nothing but may help explain something. He desperately wanted to reconcile with Young, and when told that she had been exploiting him for money while she waited for her "real man" to return from prison, he "just snapped," as he put it. After the murders, he prepared to commit suicide but was arrested; he then prayed daily for 25 years for the families of the women he had killed.
"Rarely in my career as a prosecutor and a judge did I witness this level of remorse and acceptance of responsibility," reflected Judge Wendy Shoob, one of the judges who dealt with Morrow's appeals over two decades.
William L. Buchanan, a psychologist who worked with Morrow, recalled that one correctional officer "looked me straight in the eyes and stated to me, 'This is the best man in the world.'"
Yet in the end the state of Georgia did with meticulous planning what Morrow had done impulsively in a spasm of fury. It executed him last month by lethal injection.
Was the man strapped down on a gurney truly the same person as the enraged brute who had shot dead Young and Woods 25 years earlier?
The death penalty has been applied to at least 222 crimes in the Anglo-American legal system, including marrying a Jew and stealing a rabbit. For a time in America, stealing grapes was punishable by death. So was witchcraft.
For centuries executions were public affairs. The last public execution in the United States was in August 1936 in Owensboro, Ky. Perhaps 20,000 people gathered to see a black man, Rainey Bethea, 22, hanged for the rape and murder of a white woman. The carnival atmosphere led Kentucky to ban public executions, although public lynchings continued.
The argument for public punishment was that it deters crime, and even today a common argument is that through deterrence they save the lives of innocent people. Is that true?
One 2003 study purported to find that each execution deterred five murders, while opponents of the death penalty sometimes argue the opposite, that executions brutalize society and lead to additional murders. Statisticians and criminologists have studied this issue carefully for decades, and the general conclusion is that executions have no greater deterrent effect than long prison sentences.
Murder rates are actually lower in states without the death penalty than in those with it.
One rigorous 2012 study published by the American Economic Review found no clear deterrent effect and noted that depending on the statistical model used, one could conclude that each execution saves 21 lives or causes an additional 63 murders. Experts polled in that survey agreed that death penalty debates distract legislatures from policies that actually would reduce crime like lead removal, early childhood programs, career academies, job training, gang violence initiatives, and programs for at-risk young people.
Let's also examine another argument of death penalty proponents: that it's not worth spending hundreds of thousands of dollars supporting brutal killers for the rest of their lives.
This argument too is groundless: Capital punishment is far more expensive than life prison terms. This is because pretrial preparations, jury selection and appeals are all more expensive in capital cases, and death row confinement is more costly than incarceration for the general prison population. One 2017 study by several criminologists found that on average, each death sentence costs taxpayers $700,000 more than life imprisonment.
One reason death penalty cases are expensive is that the defense is given more time and resources to prepare the case, and appeals are automatic. So you would think that innocent people are less likely to be put to death than to serve life sentences.
That may be true. Defense lawyers grimly joke that if you're falsely convicted of a crime, it's best to be sentenced to death because then at least you will get pro bono lawyers and media scrutiny that may increase the prospect of exoneration.
Yet if death penalties get unusual scrutiny, there are countervailing forces. Researchers find that juries are more likely to recommend the death penalty for defendants who are perceived as showing a lack of remorse--and innocent people don't display remorse. A second factor is that death sentences are often sought after particularly brutal crimes that create great pressure on the police to find the culprits.
One peer-reviewed study suggested that at least 4.1 percent of those sentenced to death in the United States are innocent. With more than 2,700 Americans on death row, that would imply that more than 110 innocent people are awaiting execution.
The Supreme Court in 1976 restored the death penalty partly because it was confident that safeguards--such as meticulous rules about when death penalties could be applied--would eliminate the arbitrary application of capital punishment. In fact, "its defining feature is still its arbitrariness," noted Jill Benton, an Atlanta lawyer who defends capital punishment cases.
Racial bias affects every aspect of the criminal justice system, and researchers have found that black defendants not only do worse than white defendants, but also that blacks with dark complexions fare worse than those with light ones. Of prisoners now on death row, 42 percent are black, 42 percent are white, and most of the remainder are Hispanic.
In Washington state, researchers found that juries were four times as likely to recommend a death sentence for a black defendant as for a similar white defendant. The same study also underscored how random capital punishment is. In Thurston County, Wash., prosecutors sought the death penalty in 67 percent of aggravated murder cases; in Okanogan County, 130 miles away, zero percent.
Researchers have found that whether Texas prosecutors seek the death penalty depends partly on how The Houston Chronicle covers the case. They have also found that if a jury has a majority of women, it is less likely to recommend death.
Aside from deterring murders and saving money, a third common argument for the death penalty is that it is appropriate retribution for a heinous crime. We dishonor victims, so the argument goes, if we simply lock away a monster.
Strom Thurmond, the South Carolina senator who was the longest-serving Republican in congressional history, used to boast that as a judge in the 1930s and 1940s, he had sentenced four men to death; he saw capital punishment as reflecting community values and had no regrets, for the men got what they deserved.
A South Carolina lawyer, David Bruck, looked into those four death sentences. Three involved black men: one who was deranged from syphilis, one who was accused of rape by a white woman but had many alibi witnesses and may have been innocent, and one who in self-defense shot an armed white man who attacked him. The fourth was a white man who, in a rage, killed his girlfriend.
At the time, it may have seemed to Thurmond and the white community self-evident that these four executions were righteous. Today the first three seem hideous examples of racist injustice. What is unique about the death penalty is that a person can never be un-executed.
Some day, I believe, Americans will look back at today's executions just as we now look back at witch burnings and public hangings, and they will ask: What were they thinking?
In Jacksonville, Clifford Williams Jr. is trying to get used to freedom after 42 years as a convicted murderer. Buddy Schulz, his lawyer, told me what happened when he visited Williams in prison and told him that he would be released.
"He cried for the first 10 minutes," Schulz recalled. "For the next 10 minutes, he laughed. And finally after 20 minutes, he said, 'Mr. Buddy, I hope you don't think me rude, but I've got to go to the chapel and thank God.'"
I reached out to Henry M. Coxe III, who four decades ago prosecuted the case against Williams and won the death sentence. I figured that he would see the issue differently, but he didn't. In fact, he was relieved that of the five death sentences he won as a prosecutor, none were ever carried out.
"In hindsight, I don't think the death penalty serves a meaningful purpose," he told me.
Williams is now living with his daughter in Jacksonville, taking "one day at a time," he told me. The fact that he knew he was innocent made it immeasurably harder, he said, but he added, "I was trusting God would deal with it."
I asked about the death penalty, and there was a long silence as he struggled with his emotions.
"Too many people," he said, suddenly sounding exhausted, "are getting the death sentence who don't deserve it."
Editorial on 06/30/2019
Print Headline: When we kill