After decades of legal and political maneuvering, the twenty-year-old
death-penalty case of black journalist Mumia Abu-Jamal is entering a
Politicians and courts are taking their cues from growing public
The essential case for the abolition of capital punishment has long been complete, whether it is argued as an overdue penal reform, as a shield against the arbitrary and the irreparable or as part of the case against "big government."
Amid all the recent assaults on the Bill of Rights, including the latest
trashing in the USA Patriot Act and the denial of habeas corpus to
citizens, amid all this, in the span of one week, the Supreme Court has
issued rulings almost beyond the dreams of the most ardent civil
Listen to the exultant cry of Steven Hawkins, executive director of the
National Coalition to Abolish the Death Penalty, who said this is "the
most favorable term in a quarter of a century, in terms of death penalty
For those who have gazed aghast over the past generation as jury rights
have been trampled by tough-on-crime fanatics and liberal elites, there
are paragraphs in certain opinions in the Court's rulings that are as
momentous as any in the Warren Court. From whose pen did these
"My observing over the past twelve years the accelerating propensity of
both state and federal legislatures to adopt sentencing factors
determined by judges that increase punishment beyond what is authorized
by the jury's verdict, and my witnessing the belief of a near majority
of my colleagues that this novel practice is perfectly OK, cause me to
believe that our people's traditional belief in the right of trial by
jury is in perilous decline. That decline is bound to be confirmed, and
indeed accelerated, by the repeated spectacle of a man's going to his
death because a judge found that an aggravating factor existed.
We cannot preserve our veneration for the protection of the jury in
criminal cases if we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it."
John Paul Stevens, you guess? No, Antonin Scalia. His emphasis on the
fundamental role of the jury as guardian of our rights under the
Constitution runs entirely counter to the trend of the past couple of
decades, when judges have, with either the approval or indifference of
legislatures and the press, been allowed not only to deprecate the
jury's fundamental right to nullify and set the law aside but also to
set jurors' verdicts aside and impose their own, often with lower
standards of proof.
By and large, liberals have been the architects of these erosions of
fundamental popular rights, whether it was Tip O'Neill rushing through
totalitarian drug laws in the mid-1980s; or Clinton's Antiterrorism and
Effective Death Penalty Act (which, among other horrors, junked the
doctrine of habeas corpus); or the hate crimes statutes written into
many state codes at the behest of gay, feminist and liberal civil rights
groups in the wake of the James Byrd and Matthew Shepard killings.
Scalia exposes the contradictions tellingly in his concurring opinion in
Ring v. Arizona, where the Court struck down, 7 to 2, an Arizona
statute that allowed judges rather than juries to impose the death
penalty. He rightly chides Justice Stephen Breyer for inconsistency in
endorsing the right of judges to overrule the jury in tacking on
enhanced punishment under hate crimes statutes, and then, in Ring v.
Arizona, for tacking the other way. Scalia's term for this kind of
pirouette is "death-is-different jurisprudence."
Another momentous Supreme Court ruling, Atkins v. Virginia,
concerns a case in which a man with an IQ of 59 was sentenced to death
for committing a robbery and murder. The Court has ruled 6 to 3 that
times have changed and that it's not OK these days to put the retarded
Scalia, dissenting, made an argument in consonance with his view of the
jury's paramount role, as expressed in Ring. Why, he asked,
should the determining of a person's mental competence be allotted to
the social scientists, the IQ testers, the battery of so-called experts
so memorably stigmatized in the works of the late, great Stephen Jay
Gould? Liberals don't want to execute the mentally retarded; they just
want to abort or sterilize them. In the Atkins trial, Scalia noted, the
jury had been given testimony on the murderer's mental capacity but had
regarded it as insufficient in detaining the defendant from the death
Scalia asks, How can one exempt people from the capital penalty on the
grounds of mental incapacity to recognize the concepts of punishment and
retribution, and then put them away in prison for their rest of their
Where Scalia is caught in an obvious contradiction is in his endorsement
of the notion that only those prepared to vote for the death penalty
should be allowed on a jury, and that appeals court judges opposed to
the death penalty should recuse themselves in capital cases. "There is
something to be said," Scalia writes in his dissent in Atkins,
"for popular abolition of the death penalty; there is nothing to be said
for its incremental abolition by this Court." Again, it's a good
argument, but abolition of slavery began in part with the refusal of
juries to abide by statutes endorsing slavery. Ditto with religious
freedom, starting with William Penn, whose jury refused to convict him
for flouting the Conventicle Act.
If he were consistent, Scalia would recognize that jurors should be
rejected only if they have a material interest in the outcome of the
case. And given that some 30 percent or more in the United States are
opposed to the death penalty, such juries would more than likely have a
death penalty opponent among the twelve. On the role and rights of the
jury I strongly recommend Godfrey Lehman's Is This Any Way to Run a
Meanwhile, we should honor the tremendous efforts of the defense teams
who fought these cases to the Supreme Court and who have been rewarded
by two decisions that overturn the death sentences of hundreds. But the
fact remains that it is the death penalty itself that needs to be
abolished, and this is a peerless moment of opportunity for death
penalty activists to press forward.
The Court majority said in the Atkins decision that the Eighth
Amendment prohibition on cruel and unusual punishment reflects social
values, which change from century to century and decade to decade
(notwithstanding Scalia, who gazes back nostalgically 2,000 years to St.
Paul). What an excellent springboard for an invigorated campaign to end
the barbarism of judicial killing.
The old movies used to feature a priest walking alongside the condemned
man toward the scaffold, offering last seconds of comfort,
plea-bargaining strategies with St. Peter, a bolstering hand under the
elbow. Sometime in the next decade the tableau may be reversed, with a
lay counselor assisting the condemned priest as he totters toward that
final rendezvous with the executioner.
The death penalty is being vigorously touted as the best way to deal
with child molesters. And as the world knows, the Roman Catholic Church
has sheltered many a child molester. On the cutting edge here are three
states noted for the moral refinement of their legislators: to wit,
Montana, Louisiana and Alabama. The first two states have already put
Death for Molesters into their statute books, and when Alabama lawmakers
convene again next year they will press forward into legislation, after
an overwhelming vote from the state's House of Representatives last year
in favor of molester executions.
The Montana law allows a person previously convicted of "sexual
intercourse without consent" with someone under 16 in any state to be
sentenced to death if convicted of the crime in Montana. The law was
passed in 1997, but no one has yet been charged under that provision.
Since 1995 Louisiana has had a law allowing the death penalty for people
convicted of raping a child under 12. Thus far, a few charges, no
Alabama's bill would authorize the death penalty for people convicted a
second time of having sex with someone under 12. No other states allow
capital punishment for a sex crime. ABC News quoted Marcel Black,
chairman of the Alabama House Judiciary Committee, as saying, "The very
serious meaning of this is to send a message to child molesters that it
is a bad thing to do."
Molesters can take comfort in the fact that these laws will probably not
survive challenges from higher courts. The US Supreme Court ruled in
1977 that the death penalty is excessive punishment for rape. But who
knows, in the current atmosphere anything is possible. Maybe that's why
Pope John Paul II, a far-seeing man, shifted the Church toward
opposition to the death penalty.
Two years ago fewer than 8 percent of those who took part in a Gallup
poll among Jewish Israelis said they were in favor of what is politely
called "transfer"--that is, the expulsion of perhaps 2 million
Palestinians across the Jordan River. This month that figure reached 44
Professor Martin van Creveld is one of Israel's best-known military
historians. On April 28 Britain's conservative newspaper the Telegraph
published an article outlining what van Creveld believes is Sharon's
According to van Creveld, Sharon's plan is to drive 2 million
Palestinians across the Jordan using the pretext of a US attack on Iraq
or a terrorist strike in Israel. This could trigger a vast mobilization
to clear the occupied territories of Arabs. Van Creveld notes that in
the 1970 showdown between Jordan's King Hussein and the PLO, Sharon,
serving as commanding officer of Israel's southern front, argued that
Israel's assistance to the King was a mistake; instead it should have
tried to topple the Hashemite regime. Sharon has often said since that
Jordan, which has a Palestinian majority even now, is the Palestinian
state, and thus a suitable destination for Palestinians to be kicked out
of his Greater Israel.
A US attack on Iraq would offer appropriate cover. Sharon himself told
Secretary of State Colin Powell that nothing happening in Israel should
delay a US attack. Other pretexts could include an uprising in Jordan,
followed by the collapse of King Abdullah's regime.
Should such circumstances arise, according to van Creveld, Israel would
mobilize within hours. "First, the country's three ultra-modern
submarines would take up firing positions out at sea. Borders would be
closed, a news blackout imposed, and all foreign journalists rounded up
and confined to a hotel as guests of the Government. A force of 12
divisions, 11 of them armoured, plus various territorial units suitable
for occupation duties, would be deployed: five against Egypt, three
against Syria, and one opposite Lebanon. This would leave three to face
east as well as enough forces to put a tank inside every Arab-Israeli
village just in case their populations get any funny ideas."
In van Creveld's view (he does say that he is utterly opposed to any
form of "transfer"), "the expulsion of the Palestinians would require
only a few brigades. They would not drag people out of their houses but
use heavy artillery to drive them out; the damage caused to Jenin would
look like a pinprick in comparison." He discounts any effective response
from Egypt, Syria, Lebanon or Iraq.
But what about international reaction? Van Creveld thinks it would not
be an effective deterrent. "If Mr Sharon decides to go ahead, the only
country that can stop him is the United States. The US, however, regards
itself as being at war with parts of the Muslim world that have
supported Osama bin Laden. America will not necessarily object to that
world being taught a lesson--particularly if it could be as swift and
brutal as the 1967 campaign; and also particularly if it does not
disrupt the flow of oil for too long.
"Israeli military experts estimate that such a war could be over in just
eight days," van Creveld writes. "If the Arab states do not intervene,
it will end with the Palestinians expelled and Jordan in ruins. If they
do intervene, the result will be the same, with the main Arab armies
destroyed. Israel would, of course, take some casualties, especially in
the north, where its population would come under fire from Hizbollah.
However, their number would be limited and Israel would stand
triumphant, as it did in 1948, 1956, 1967 and 1973."
We've been warned.
Anyone looking for evidence that the death penalty should be
abolished need only look at the case of Zacarias Moussaoui, the
so-called twentieth hijacker, now on trial for his life for allegedly
A world effort to force an end to the US death penalty is gaining strength.
In Terre Haute, the effects of one execution are only the beginning.
To write a letter on behalf of Juan Raul Garza, as well as the other prisoners currently
on state and federal death row, visit our Death Row Roll Call.