OSI Forum: Supreme Decisions—Re-Thinking the Death PenaltyOSI and the Death Penalty
In the past three months there has been a flurry of executive and court decisions limiting the use of the death penalty, an issue the Open Society Institute's Gideon Project has focused on since 1999.
- In May, Maryland Governor Parris Glendening (Democrat) imposed a moratorium on all executions, and shortly thereafter the New York City Council delivered its own call for a moratorium.
- In June, the Supreme Court issued two decisions limiting the application of the death penalty. The first, in Atkins v. Virginia, banned the execution of the mentally retarded. The second, in Ring v. Arizona, gave juries the exclusive right to determine whether evidence presented at trial merits a sentence of death.
- In early July, Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, declared the federal death penalty unconstitutional.
- In late July, the Innocence Protection Act, a proposed federal bill that would improve death penalty counsel and provide universal access to DNA testing, was approved by the Senate Judiciary Commitee in a bipartisan vote of 12-7.
This series of developments, while remarkable on an issue as controversial as the death penalty, is not surprising. In recent years, although public opinion on the idea of the death penalty has changed little, support for death penalty reforms and moratoriums on executions has increased. Public education and advocacy campaigns by national and state organizations are more proactive and better coordinated than ever, and the number of nongovernmental organizations (NGOs) supporting anti-death penalty advocacy, while still small, has also increased.
The Gideon Project supports a combination of strategic litigation, research, national public education, state-level grassroots organizing, and coalition building in an effort to abolish the death penalty in the United States. The work of its grantees has been instrumental in changing the climate of public and judicial opinion about the fairness and utility of the death penalty.
Illinois' Moratorium
In January 2000, after it was determined that 13 death row inmates had been wrongfully convicted, Illinois Governor George Ryan (Republican) declared a moratorium on all executions in the state until a commission could review the administration of the death penalty and make a determination on the fairness of the system. OSI's support of a seminal conference organized by Northwestern School of Law Professor Larry Marshall and the Center on Wrongful Convictions, which investigated and litigated nine of the 13 cases of innocence, helped bring national attention to the problem of death row innocents.
Two other OSI grantees, the Illinois Death Penalty Education Project and the Illinois Coalition Against the Death Penalty (an organization that received funding through OSI's funding partner, the Tides Foundation Death Penalty Mobilization Fund), helped arrange briefings for the commission, which ultimately produced a report in 2002 recommending 85 reforms. (A majority of the commissioners recommended that the death penalty be abolished altogether.) The grantees have also organized public education campaigns to educate Illinois citizens and policymakers about the need for change and the importance of granting clemency to prisoners currently on death row.
Maryland's Moratorium
With OSI funding, the Quixote Center's Moratorium Now! project assembled moratorium support among Maryland's African American constituents. Through an intensive year-long campaign, Moratorium Now! attracted enough support in the African American community to help convince Gov. Glendening to declare the statewide moratorium.
Moratorium Now's! success is a testament to the importance of grassroots organizing on the local and state level, and it also demonstrates the effectiveness of policy-relevant research. Moratorium Now! and other activists have effectively used state-specific research developed by Soros Justice Fellow and Columbia University law professor James Liebman, whose two-part study, "A Broken System: Error Rates in Capital Cases" (June 2000 and February 2002), showed that 65 percent of all death penalty sentences issued between 1973 and 1995 have been reversed on account of unfair practices.
Abolishing the Execution of the Mentally Retarded
The Supreme Court's landmark decision in Atkins that executing the mentally retarded is unconstitutional comes amid a major shift in thinking on capital punishment. Eighteen states have banned execution of the mentally retarded since the death penalty was reinstated in 1976, and public opinion polls reveal a country that disapproves of the practice. Internationally, the number of countries that execute the retarded continues to shrink.
This progress was accomplished through the joint efforts of lawyers and activist organizations such as the Southern Center for Human Rights (SCHR) and the National Coalition to Abolish the Death Penalty (NCADP), both Gideon Project grantees. SCHR and other advocates began focusing on the issue of the mentally retarded in 1986, when they called local and national attention to the execution of Jerome Bowden, a mentally retarded man with an IQ of 59 who was executed in Georgia. SCHR's publicity of the case generated enough attention to influence Georgia legislators to pass the first state law banning the execution of the mentally retarded. At the same time, Gideon grantees like the NCADP, the Death Penalty Information Center, and the American Civil Liberties Union's Capital Punishment Project worked to educate the public about the large number—more than 10 percent, by some estimates—of death row inmates with histories of mental retardation.
