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W i l l a r d J. L a s s e r s

Death Takes a Holiday On 2 June 1967 Luis Monge died in a gas chamber in Colorado. Since then t h e gas chambers, electric chairs, gallows and firing range (in Utah) have stood empty. F o r over three years we have executed no one in the United States. In the first five months of 1967 the execution chamber claimed two lives; in 1966, one; in 1965, seven. From 1960 to 1964 the number declined yearly from 56 in 1960 to 15 in 1961~. The death penalty seems to be withering away, due partly to the abolition movement, which has succeeded wholly or partially in 13 states. But in other states, which retain the penalty on the books, executions are not in fact, as we have seen, carried OUt.

A mark of our growing maturity, sanity and humanity? For reasons I will mention later, I think so. But there is another aspect to the matter. We have stopped the executions; we have not stopped sentencing men to execution. C o n s i d e r : from 1960 through 1969 about 100 men a year have been sentenced to death. (The number has been quite constant. The high was 1961 with 140 sentenced, and the low 1967 with 85.) Moreover, case dispositions other than by executions (commutations, transfers to mental hospitals, an occasional natural death or suicide, reversals, new trial orders and so forth) have remained relatively constant. We are, however, taking much longer to remove cases from the death docket. Median elapsed time from sentencing to disposition rose from 13.4 months in 1960 to 33.2 months in 1968. At the beginning of the decade, 189 men sat in death rows throughout the United States. Since then, every year has seen an increase in the number under sentence. It rose by 30 in 1960, by 47 in 1961 and so on, until at the end of 1969 the number stood at about 525. (The best estimate is that 10

553 men are now under sentence of death in the United States.) Thus we have in effect ended one form of barbarity and replaced it by another. We have created colonies of living dead in our state penitentiaries. What has brought us to this? Why do we continue to sentence men to a punishment we are so obviously unwilling to c a h y out? It is not hard to understand how it is we continue to sentence men to death. The death penalty is 'still on the books in 37 states. The capital sentence process is initiated by a county prosecutor or an assistant who decides to seek the death penalty. Until a 1968 Supreme Court decision, the prosecutor was entitled to a jury that had been purged of those with cons c i e n t i o u s scruples against capital punishment. Since then he is still entitled to a jury prepared to impose that sentence, even though some jurors may have to set aside scruples to do so. The role of the judge varies from state to state. In some jurisdictions he is officially without power with respect to a capital sentence; in others he must concur with the jury to mete out a death sentence. (There is a complex interrelationship in capital cases between the official and unofficial roles of judge and jury, but this subject need not detain us.) The prosecution is aided by the sure but unspoken knowledge of judge and jury of the long appellate process. If there is an error, will it not be corrected in the higher courts? Will not the governor commute the sentence? Hence, once a county prosecutor decides to seek a capital sentence, given "good facts" as we lawyers say, he has a reasonable chance of success. Hence the annual 100 sentences. Why have there been so few actual executions? The trend is worldwide and long-term. In the United States, Supreme Court litigation has been a

powerful factor since January 1968. In that month, it accepted for review the case of William Witherspoon, convicted of a 1959 Chicago murder. The Court decided to look at the old and ne~.rly universal practice of "qualifying" the jury for the death penalty. Under this system, the prosecutor could excuse "for cause" any prospective juror who declared that he had c o n s c i e n t i o u s scruples against the death penalty. Accepting the case for review put a brake on whatever executions might have taken place pending the Witherspoon decision because almost everyone on death row was put there by a "qualified" jury. The few exceptions were the few men sentenced to death after a bench trial (jury having been waived) or after a plea of guilty. In June 1968 the Supreme Court upheld Witherspoon's conviction but upset the death sentence, holding unconstitutional the practice of qualifying the jury, because it "stacked the deck" against the defendant. Further, the Supreme Court made its ruling retroactive to all those under death sentence set by "qualified" juries. The Witherspoon case itself was sent back to the Illinois Supreme Court for reconsideration. That Court commuted the sentence to 75 to 100 years. Throughout the country attorneys for other defendants initiated proceedings asking for resentencing. A few months after Witherspoon in December 1968, the Supreme Court agreed to review the case of William L. Maxwell. There were two issues raised in Maxwell's case, both arising perhaps out of the same bit of history. For centuries in England, and later generally in the United States, the sole punishment for murder was death (usually by hanging). Later, these laws were ameliorated to give the jury (or judge) a choice of death or imprisonment. But state legislatures did not set TRANS-ACTION

Comment... statutory guides spelling out the circumstances in which the death sentence remained appropriate. Thus today, generally, the jury and judge have unfettered discretion in choosing life or death. They may choose guided by r e a s o n , by unreason or even by prejudice. How does this unguided jury proceed? One would suppose that first the jury would hear evidence on guilt or innocence. If the defendant was acquitted, the case would end. But if he was convicted, the jury would hear evidence in mitigation or aggravation. This sensible procedure is used in some states, notably California, but in most states there is no separate hearing on punishment. Thus, a defendant who asserts his innocence has no effective opportunity to put in evidence on punishment. If he did so, his plea of innocence would surely be undermined. The unitary trial is doubtless a carry-over from the past. When the sole punishment for murder was death, there was no need for a split trial. The two issues before the Supreme Court in Maxwell were the constitutionality of unfettered discretion given jury and judge and of the unitary trial. Since the former issue applied to nearly all capital defendants and the latter to most, the Maxwell case was an effective bar to executions while it was pending before the Court. The Supreme Court found the two issues in Maxwell exceptionally difficult. The case was argued in March 1969 and ordered reargued in October. Finally in June 1970 it decided Maxwell-by ducking the issues. It sent the case back to the lower courts for reconsideration of the Witberspoon q u e s t i o n . But it simultaneously granted review in two other cases, McGautba v. California and Crampton v. Obio, raising the same two questions. These will be heard during the term beginning last October. Meanwhile, there is a de facto ban on executions. 12

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It would be inaccurate, however, to a s c r i b e the decline in executions wholly to the Supreme Court litigation. The number of executions had declined before such litigation reached the Court, and the execution chambers were empty in the brief interval between Witberspoon and Maxwell. Why the decline? Changes in public sentiment are clearly part of the reason. (Opinion polls over the last several years show that about half the population opposes the death penalty.) But apart from factors that influence the public generally, judges included, there is I believe an additional reason, not appreciated by the public, for the profound reluctance of the courts actually to let men die. That reason is this: in a very large number of capital cases (I am tempted to say "in nearly every" capital case), it is fearfully apparent that the law, the courts, the judicial system have failed to provide the man on trial for his life with the procedural protections and rules of substantive law that one expects of a civilized society. The Talmud declares that if an accused was found guilty and was being led to the place of execution, a herald preceded him, calling out his name, his crime, when and where it was committed and the names of those upon the basis of whose testimony he was condemned. The herald proclaimed that anyone who possessed any evidence favorable to the condemned should hasten to produce it. Should such evidence be forthcoming, or should the condemned man declare that he could prove his innocence, a stay of execution was granted. If the convict's testimony proved ineffective, he was still allowed to make another attempt at proving himself innocent since two scholars walked along with him for the purpose of determining whether any other testimony that he might offer would justify delay in execution. This ancient bit of law is quaint,

charming, humane and sound. Its spirit ought to animate our judicial process. Regrettably, it does not. Consider the case of William Witherspoon. In 1963, when the Illinois Supreme Court upheld Witherspoon's death sentence, it granted the request of his court-appointed attorney to be relieved of further responsibility. This left Witherspoon facing the chair, with substantial legal channels still open and a right to seek c l e m e n c y - b u t without a lawyer. The Supreme Court of the United States declined his request to appoint counsel for a petition to it seeking review. Witherspoon applied to the Illinois Supreme Court to appoint counsel. It promptly did so, but the 90 days allowed by law for United States Supreme Court review had expired. He lost this opportunity for review. Fortunately, Witherspoon obtained other counsel, who conducted a protracted battle on his behalf. Later, after these attorneys had exhausted their efforts, Witherspoon, still under sentence of death and again without a lawyer, from his prison cell wrote his own petition which he mailed to the federal court in Chicago. A judge there appointed one of the leading members of the Chicago bar, Albert E. Jenner, Jr., to represent him. Jenner and members of his firm accepted their appointment as a challenge. They successfully carried the matter to the Supreme Court. That Court, once it had the case before it, d e c l a r e d that Witherspoon's death sentence was indeed unlawful, and ultimately the Illinois Supreme Court reduced the sentence to a long prison term. The Witherspoon case is not unique. Generally, state courts recognize little obligation to provide counsel beyond the initial appeal. Yet there are still numerous avenues of relief open: further state court proceedings, application to the lower federal courts and the United States Supreme Court. Finally there is the right to ask for clemency. All these courses of action, to be effective, require counsel. Yet the indigent capital defendant, and nearly all such defendants are indigent, must rely on a few voluntary agencies or volunteer counsel-paying for expenses out of their own pockets. TRANS-ACT1ON

There is another incredible facet to the Witherspoon case. The attorneys general of 24 states filed a friend of the Court brief upholding the practice of excluding jurors with scruples against the death penalty. With this ! take no exception. But then, the attorneys general argued, if the practice were declared unconstitutional, the new rule should not apply to those already sentenced to death because of the burden of retrying the condemned man. The attorneys general even suggested a technical approach to the problem which would deny Witherspoon himself the benefit of the new rule. True, the attorneys general spoke in terms of the possility of full new trials in death cases, not just new penalty trials. Nonetheless, the stark fact remains that 24 states tried to persuade the Supreme Court to rule that men should be allowed to go to their deaths on the basis of trials that failed to meet constitutional standards. How did the court treat William Maxwell? He, a black, was sentenced to death in Arkansas by an all-white jury for the rape of a white woman. Let us pass that. The NAACP Legal Defense and Education Fund took his case to the federal court, arguing the unconstitutionality of the standardless jury and the absence of a separate penalty hearing. The court rejected both contentions. Let us pass that. But then the court denied leave to appeal and denied a stay of execution. (The date was a week off.) A court of appeals judge denied both a leave and a stay. It took a Supreme Court judge to get a stay and a Supreme Court order to get an appeal heard. The appeal was lost, and the case went on to the Supreme Court as related above. Whether or not one accepts the contentions advanced by Maxwell's lawyers, they were surely not frivolous. Yet the district court and federal court of appeals were unwilling to hear the case, or even let Maxwell live long enough for it to be heard. The Crampton case now before the Supreme Court is an incredible story: Crampton spent years in prison. In September 1967 Crampton's wife, because of his amphetamine addiction and bizarre behavior, and knife threats to her, persuaded him to commit himself to a state mental hospital. In JANUARY 1971

November, a state hospital physicial n o t e d on t h e chart: "Prognosis: G u a r d e d . Dangers and Warnings: Under stress, patient could be dangerous to his wife." Nonetheless, within a month he was sent home on Christmas furlough. He overstayed the furlough. Apparently the authorities did not bother to pick him up. By 17 January he had murdered his wife. Yet a defense of insanity was rejected. What measure of responsibility does the state have for the death of Mrs. Crampton? The Illinois case of Charles Townsend, pending since 1955, is the oldest death case in the nation. It reveals starkly whom we are prepared to execute and on what evidence. Police were holding one Campbell for robbery. To obtain his release from custody, he informed on Townsend regarding the murder of one Boone found beaten in Chicago on 18 December 1953. Campbell said that on a night in December he saw Townsend in the vicinity of the murder carrying a brick. Police arrested Townsend, then a 19-year-old drug addict and mental defective. (An expert witness for the prosecution placed him "just a little above moron.") When police began questioning him, withdrawal pain set in. A police physician administered phenobarbital and hyoscine (or scopolamine). Dispute has raged over the effects of this treatment, the defense claiming it makes one highly suggestible (scopolamine is "truth serum"), the prosecution denying it. Shortly after the medication, Townsend, within a short period, confessed four murders (including Boone's) and two robberies. A man named Anagnost, a victim of one of the robberies, at a lineup held before the confession, failed to pick out Townsend. Yet Townsend was indicted for all six crimes. The Townsend case has had a tortured course in the courts. (Twice it has been in the Supreme Court.) Its history is almost unbelievable. Nearly lost in the tangle has been the horror that we are willing to impose a death sentence on this man based upon so dubious a confession and such doubtful corroboration. The foregoing cases illustrate and, I think, demonstrate my thesis regarding the underlying reason for the de-

cline and later halt in executions. Capital case after capital case raises fundamental questions: of procedural fairness, of mental capacity, of mental illness, of possible innocence. The higher courts, I submit, are aware of the problem. They see it in the immediate case before them for disposition and in the generality. The courts are in part unwilling and in part unable to resolve the matter by ending the death sentence. Our legislatures are unwiliing to do so, due partly to a misperception of the realities of capital cases and partly to political considerations. We stand trapped. The ranks of the 5 53 will doubtless continue to grow. If these cases stood alone, they would merit our attention. But they do more: if grave abuses are found in capital cases, which supposedly receive our "best" treatment, what of criminal cases generally? The capital cases hint at the darker realities of criminal justice. Let me mention a few: we still rely heavily on confessions of doubtful validity; defendants are represented by overworked and underpaid defense counsel; evidence in favor of the defense, despite Supreme Court prohibitions, is sometimes withheld by the prosecution; pretrial "discovery" procedures (depositions of adverse witnesses, inspection of physical evidence and so on) which eliminate surprise at trial, long a commonplace in civil litigation, are but creeping into the criminal process. Despite popular belief to the contrary, scientific crime detection is rarely used and when used is sometimes misrepresented by the prosecution. Sometimes the "science" in the courtroom is little above a fraud. Complex questions of human motivation are weighed on coal scales. In paraphrase of Joseph K, the shame of it is on us atl.

Willard J. Lassers is a partner in the law firm of Elson, Lassers and Wolff in Chicago.

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