Pulling Back From The Brink
Why are death sentences and executions dropping?
TRENTON, N.J.--One way or another, convicted murderer John Martini will die in this city's aged state prison, where he's marking time on death row with New Jersey's nine other condemned men.
At 75, he's an old man with an old man's infirmities--cataracts, a stomach ailment, and a bum hip that keeps him in a wheelchair. Martini, who 17 years ago kidnapped and killed businessman Irving Flax, also has a morbid distinction: His appeals are all but exhausted, and he's in line to become the first New Jersey inmate executed in 43 years.
"This is the closest the state has gotten in decades to an actual execution," says Marilyn Zdobinski, the county prosecutor who in 1990 put Martini behind bars. He has since been convicted of earlier murders in Arizona and Pennsylvania.
But it recently became more likely that Martini will die from the ravages of old age: New Jersey lawmakers this year became the first in the nation to pass a legislative moratorium on executions. They've ordered a new commission to determine whether the state's death penalty law is "consistent with evolving standards of decency" or whether it should be abolished in favor of life sentences without parole.
"We have a governor [Democrat Jon Corzine] who's in favor of abolishing the death penalty, as well as Republicans who feel the same," says state Sen. Raymond Lesniak, a Democrat and former death penalty supporter who sponsored the bill. "It would eliminate any possibility of executing an innocent person."
New Jersey joins a growing roster of states re-evaluating their laws at a time when executions in the United States--last year there were 60--are matching their lowest level in more than a decade. New York declined to reinstate the death penalty after its high court struck down the law, and governors--including those in California and Florida--have temporarily suspended capital punishment amid a flurry of legal challenges claiming that the most common method of execution, lethal injection, is cruel and unusual. Critics say that improper administration of anesthesia as the first in the three-step process has caused those being executed excruciating pain. For that reason, federal executions are on temporary hold as well. Last week the issue landed in the U.S. Supreme Court, where justices heard lawyers for a Florida death row inmate argue that their client should be allowed to file a civil rights appeal challenging lethal injection as unconstitutional.
Torn. What's happening is reflective of a nation seemingly at odds with itself. A recent Gallup Poll shows that support for executions, though down from its peak, is still 64 percent. But it is also clear that many, including prosecutors and judges, are growing increasingly queasy about imposing death--agonizing not only over how and whom to kill but over whether those facing execution have a fair shot at proving their innocence. Courts with growing frequency are choosing life in prison as an alternative.
Nothing has unsettled people more than the parade of prisoner exonerations based on DNA evidence. In 1992, lawyers Barry Scheck and Peter Neufeld founded the Innocence Project to pursue DNA tests that might free prisoners who claimed to be wrongfully convicted. In 2000, Illinois Gov. George Ryan halted executions and eventually commuted 164 death sentences to life in prison after 13 innocent people were found on his state's death row. The Innocence Project, now one of more than 30 such efforts nationally, says it has helped exonerate 175 prisoners, including 14 who were at one time sentenced to death.
Wrongful convictions have been a factor in New Jersey, too. Nate Walker was picked out of a lineup and eventually convicted in a 1976 kidnapping and rape. The jury gave the Newark resident a sentence of life plus 50 years; 12 years later blood tests his lawyer had never asked for exonerated him. He's proof, Walker tells audiences during speeches he now gives, that the innocent can go to jail.
Inspired. Richard Dieter of the Death Penalty Information Center says the number of death sentences handed down by U.S. courts has plummeted--from 300 in 1998 to 106 last year. New Jersey is one of a number of states with death penalty laws on the books but not much of a will to carry them out. Even California, with 649 prisoners on death row, has executed only 13 in the 30 years since capital punishment, essentially declared unconstitutional by the U.S. Supreme Court in 1972, was reinstated after a four-year hiatus. (Texas, the leader, has put 362 prisoners to death since 1977, including seven so far this year.)
In New Jersey, the anti-capital-punishment organization New Jerseyans for Alternatives to the Death Penalty marshaled thousands of volunteers to get the legislative moratorium passed as Martini and other death row inmates seemed to be headed toward execution. Many of those volunteers were inspired by Pope John Paul II, who called for an end to executions during a U.S. visit in 1999, says the group's director, Celeste Fitzgerald. But Lorry Post, a former legal services lawyer who helped found the organization, was stirred by more personal reasons. His daughter, Lisa, was stabbed to death by her husband in 1988. Post has always opposed capital punishment and said he would have been "a hypocrite" to change his mind after his daughter's murder. "Society shouldn't be killing people," says Post, who often wondered what he would tell his granddaughter if her father were to be executed.
The most effective argument against execution, he says, is pragmatic, not moral: Numerous studies including those by the American Bar Association and the American Civil Liberties Union have shown that a defendant's odds of being condemned to death depend far more on race, the quality of legal representation, and geography than on the facts. Such reports have compiled nightmare stories of defendants' lawyers showing up drunk or woefully unprepared--and in one case, neglecting to tell the jury the defendant was mentally retarded. The ABA says the results of poor lawyering are "often literally fatal for capital defendants."
Geography can play a similar role. A 2002 ACLU report found that 82 percent of executions in the past 25 years occurred in just 10 states--with Texas and Virginia accounting for half. "It's impossible to be fair when imposing the death penalty," says Post, whose former son-in-law will be released from a Georgia prison in less than 27 months.
Marilyn Flax disagrees. She was in her early 40s when Martini called her and demanded ransom for her husband, who had just been kidnapped. "I spoke to the killer many times on the phone that day. I had a bulletproof vest on. I was wired. I made a ransom drop," says Flax. Martini still pumped three bullets into her husband's head.
"The last words I heard from my husband were on the phone--he was crying and screaming to give them the money, that they were going to kill him," says Flax. She wants Martini dead because she believes he has no excuses--he's a white man who has confessed, who had good lawyers who pursued all appeals, and her state doesn't take capital punishment lightly.
But the prevailing consensus in New Jersey is that the death penalty there will be abolished. Former Morris County prosecutor Michael Murphy says that eradicating the law will save prosecutors money; a recent study estimated that the state had spent $253.3 million trying and defending death penalty cases since the state reinstated capital punishment in 1982. He also argues that it will be good for the law as a whole--that in their efforts to avoid imposing death, courts have established procedural precedents that make it more difficult for prosecutors to get convictions in other criminal cases.
Family ties. Murphy has a unique insight into the penal system: His late stepfather, Richard Hughes, grew up the son of the warden at the prison where Martini now resides and as governor presided over the state's last execution in 1963. "It was," says Murphy, "the most troubling day of his service to New Jersey."
Executions are also declining worldwide as more nations move to bar capital punishment, Amnesty International reported last week. The United States, however, remains among the top four countries in which most executions occur. Ninety-four percent of the 2,148 executions carried out last year in 22 countries were staged in just four nations: China, Iran, Saudi Arabia, and the United States, the organization said--the vast majority in China.
And no one is predicting the end of the death penalty in the United States. The current lethal injection controversy is one that even Dieter says can be legally resolved with a new protocol. In fact, North Carolina on April 21 administered a lethal injection to a prisoner whose brain activity was monitored to ensure the anesthesia worked before the deadly dose was administered.
Yet even with continued strong support for the death penalty--37 states have capital punishment laws--confidence in its fairness seems to have been irreversibly shaken, and that has altered the nature of the national debate. More than a half-dozen legislatures during the past year have considered moratoriums similar to the one passed by New Jersey, and at least 16 others have introduced bills over the past two years that would abolish executions. In Illinois, which now has freed 18 death row prisoners, a commission in 2002 recommended dozens of reforms. While the Legislature continues its work on the issue, the moratorium remains in place and has become an issue in this year's gubernatorial race. (In the U.S. Senate, Republicans have been pushing a bill that would limit prisoners' ability to appeal their sentences or convictions--an effort that a top Senate Judiciary Committee adviser last week characterized as "dead.")
Kent Scheidegger of the pro-law-enforcement Criminal Justice Legal Foundation predicts that there will continue to be a chipping away at capital punishment laws, similar to decisions by the U.S. Supreme Court to bar executions of juveniles and the mentally retarded. Bottom line, most Americans still believe in the ultimate penalty for those convicted of the most heinous crimes, but the public largely wants it done right and with deliberation--though polls show many accept that mistakes may occur. "Most people aren't anxious to kill people," says Post. "They just want society to be protected."
And that most likely means that death penalty cases will continue their tortuous paths through the legal system while legislatures tweak state laws and judges, prosecutors, and juries opt more frequently for sentences of life without parole when asked to decide who should live and who should die.
With Jennifer Jack
This story appears in the May 8, 2006 print edition of U.S. News & World Report.