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Criminal Justice SectionDecember 1996 NewsletterArticles |
The Death Penalty Debate Refuting the "Deserves to Die" Argument
by Margaret Vandiver
Review of Cases Pending Before the Tennessee Supreme Court
Article reprinted from "Peacework" Iss. 250 Mar. 1995, a publication
of the American Friends Service Committee
Few issues have more emotional impact than the death penalty.
Discussions of capital punishment often degenerate into political
posturing and emotional exchanges that drive people further from
understanding each other’s positions. In this brief article, I
will point out a clarifying distinction in types of arguments
about the death penalty, and will discuss responses to one of
the most frequent arguments for capital punishment.
In talking and thinking about the death penalty, it is useful
to start with a distinction between empirical and moral issues.
Failure to distinguish empirical and moral arguments often confounds
and confuses discussion. Empirical issues are those that raise
questions we can answer through research, questions about things
we can measure. There are real and correct answers to these questions;
they are not a matter of opinion or moral conviction. In this
sense, the empirical questions are much easier to answer than
the moral questions, which depend greatly on personal assumptions
and beliefs, and to which there may be no single correct answer.
Moral arguments over the death penalty have remained very similar
since the issue was first debated. If you read the parliamentary
debates over the death penalty in 19th century England or in the
legislatures of this country, you will find them very familiar.
What has changed in the last century is our knowledge of how the
death penalty is used, upon whom it is inflicted, and what it
accomplishes or fails to accomplish. The conclusions of this massive
body of research document overwhelming failures; as currently
used in the US, the death penalty fails on every criterion. It
does not deter more than long prison sentences; its imposition
is skewed by race, economic and social status, and quality of
representation; it does not avoid the condemnation and occasional
execution of the innocent, the mentally retarded, or the insane;
it does not reliably distinguish the worst crimes and worst criminals
from others; and it costs more than the alternative of life in
prison.
But understanding that the death penalty fails on these criteria
does not answer the moral question of whether capital punishment
can ever by justified under any circumstances. In nearly every
conversation on the issue, proponents of the death penalty will
eventually say, "But some people have done things so terrible
that they deserve to die." Many discussions of the death penalty
slide off the track at this point. Proponents begin describing
horrid crimes and listing notorious murderers, as
continued on page 9
though they believe opponents of capital punishment are so naive
as to be unaware that people can and do commit terrible crimes.
Opponents of the death penalty tend to become defensive at this
point, and either return to empirical arguments about the failures
of the death penalty in practice, or set up a futile attempt to
excuse or explain unspeakable acts.
In the course of my experience with and study of the death penalty,
I have become persuaded of three responses to the statement "But
they deserve to die." The first and second come from 15 years
experience with the people behind the headlines and court documents.
From all we hear and read about their crimes, and from our mental
images of them, we might expect to find monsters on death row.
But when the actual condemned prisoners appear before us, they
drastically fail to meet expectations. Evil could hardly be more
banal. And the circumstance of captivity shifts the balance of
evil in an unexpected way. Whatever the inmate may have been and
done when he (only about 1% of condemned prisoners in America
are women) was free, at the time of execution he is a helpless
and terrified captive. The entire power of the state, which has
already stripped him of everything else, now prepares to deprive
him of his life. He is alone, unarmed, surrounded by officers
who have been specially trained as a death squad, in the depths
of a prison, behind locks and gates and tall fences with razor
wire. Whatever the instrument chosen for inflicting death - a
rope, a needle and poison, an electric chair, a gas chamber -
it has been carefully prepared, tested and guarded. The prisoner
may have people who love him, but they cannot help him. He is
utterly alone and defenseless. And it is his very weakness at
that moment that should move us to mercy, in the very same way
that captured enemy soldiers are spared execution. The contest
is too unequal.
A second and related reason why the ‘deserves to die’ argument
fails lies in the fallacy of any unidimensional view of human
nature. Though it is exceedingly unpopular to say so, there is
a surprising amount of kindness and humanity on death row. The
opportunity to spend many hours with prisoners facing death, and
their families, staying with them until a few hours before their
execution, having to break the news to them of the final loss
of their appeals, has taught me that the inmates cannot be entirely
judged by their worst deeds. This is easier to understand if we
ask ourselves whether we want the sum total of our lives and personalities
to be represented by the very worst thing we have ever done. Of
course nothing can outweigh the crimes many people have committed,
and I do not mean to suggest that repentance for their crimes
or other unrelated good deeds imply anything about how they might
behave if released from prison. Still, my experience convinces
me that people cannot be reduced to their very worst moments,
and that death as a punishment makes this reduction. It is too
simple a response to the complexities of our lives. This is expressed
in J.R.R. Tolkien’s book The Fellowship of the Ring: "He deserves
death." "Deserves it! I daresay he does. Many that live deserve
death. And some that die deserve life. Can you give it to them?
Then do not be too eager to deal out death in judgment. For even
the very wise cannot see all ends."
The third and most telling failure of the argument is that it
is simply irrelevant. It focuses in the wrong direction: it looks
to the condemned person, rather than to us, the condemners. Assume,
for the sake of argument, that it is true that some or most or
all of the over 3000 people presently living on death rows in
America deserve to die. It does not follow from this that we have
any right to kill them. As a member of Parliament pointed out
in the last century, we no longer punish traitors by partial hanging,
disembowelment, and drawing and quartering. This does not mean
that we like traitors any better than before, or that we have
a better class of traitors than we used to have. What it means
is that we are better. We have outgrown such punishments, and
to inflict them would violate our dignity, whether or not it was
a violation of the dignity of the traitor.
Literature expresses this concept better than most legal or criminological
writings on the subject. The point is beautifully illustrated
by a passage in Aldous Huxley’s The Devils of London: "‘Good,’
said the Commissioner, ‘good! And now the fingernails.’ Forneau
was puzzled. ‘The fingernails,’ Laubardemont repeated. ‘You will
now pull out the fingernails.’ This time the surgeon refused to
obey. Laubardemont began by being genuinely astonished. What was
wrong? After all, the man was a convicted sorcerer. But the convicted
sorcerer, the other retorted, was still a man."
Focusing on legitimate punishment that is consistent with our
dignity provides a limit to what we do to people convicted of
even the most terrible crimes. If we focus on what they deserve
for their crimes, there is no such natural limit, and we have
opened the possibility of nearly limitless cruelty. If the prisoner
has truly committed a ghastly crime, then why doesn’t he deserve
to die by torture? By prolonged torture? Here is an area where,
sowing the wind, we may all well reap the whirlwind. Most of us
can be moved to extremes of anger in certain cases. I have seen
too much of the poverty and
violence that generally precede capital crimes, and of the politics
and racism that lead to capital sentences, to ever support a death
sentence for a crime committed by an individual citizen. Emotionally,
however, I could support the death penalty as a punishment for
war criminals. Rationally and morally, I must oppose it even then,
because we must not imitate the brutality we deplore.
Thus, opposition to the death penalty implies no softness of moral
character, and certainly no maudlin sympathy with murderers. It
simply draws a line at what a government may be permitted to do
to its own citizens, without regard to what those citizens may
have done to each other. Opposition to capital punishment is based
on a firm and steadfast conception of the dignity of those of
us who will not be murderers, whether murder is deemed legal or
not.
The following criminal cases were pending before the Tennessee
Supreme Court on Oct. 2, 1996. The cases have been subdivided
into eight general categories and summarized.
Constitutional Issues
A. Anthony retroactivity; Lawrence Moore v. State, No. 03C01-9504-CR-00122
(Tenn. Crim. App., Knoxville, perm. to appeal granted (state’s
application) July 8, 1996. The trial court treated petitioner’s
pro se habeas corpus petition as a petition for post conviction
relief and dismissed it as time-barred. The petitioner, who was
convicted of robbery and kidnapping in 1983, alleged that his
kidnapping conviction was the product of malicious prosecution,
that no factual basis existed to sustain a kidnapping conviction,
and, finally, that the dual conviction for robbery and kidnapping
violated the principles of double jeopardy announced in State
v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The Court of Criminal
Appeals held that Anthony announced a new rule of constitutional
law that should be applied retroactively as the rule materially
enhances the integrity and reliability of the fact-finding process.
The court remanded the case to the trial court to determine whether
the Burford exception to the statute of limitations permits the
hearing of this petition. The state contends that since the grounds
for challenging dual robbery/kidnapping convictions existed long
before Anthony, petitioner’s failure to present a timely claim
bars his petition.
B. Investigative Stop: State v. Wayne Lee Yeargan, No. 01C01-9411-CC-00377
(Tenn. Crim. App., Nashville, Nov. 16, 1995) perm. to appeal granted
April 29, 1996. Yeargan pled guilty to DUI (2d offense) and driving
on a revoked license. He reserved a certified question of law
challenging the constitutionality of the traffic stop that led
to his conviction. A police officer who was aware of defendant’s
former DUI conviction and his revoked license stopped the defendant
as he pulled into a bar. Defendant contends that the officer lacked
probable cause to make the investigative stop as he knew defendant
was eligible for a restricted license. The officer should have
determined whether such a license had been issued before making
the stop. The Court of Criminal Appeals affirmed the trial court’s
denial of defendant’s motion to suppress. The panel held that
Tennessee Code Annotated Section 55-50-351 permits investigatory
stops to check licenses when local law enforcement officers have
probable cause to believe that a driver’s license has been revoked.
C. Plain Touch: State v. Ray Anthony Bridges, No. 02C01-9412-CC-00298
(Tenn. Crim. App. Jackson, Dec. 28, 1995) perm. to appeal granted
June 3, 1996. Ray Anthony Bridges pled guilty to one count of
possession of cocaine with intent to sell and reserved the right
to appeal a certified question of law concerning the warrantless
searches and seizures that led to his arrest. The Court of Criminal
Appeals affirmed the trial court’s denial of defendant’s motion
to suppress, holding that the informant’s tip and the officer’s
observations and knowledge of the defendant provided the officer
with reasonable suspicion sufficient to justify a Terry "stop
and frisk." Secondly, Judges Hayes and Barker found that the "plain
touch" doctrine of Minnesota v. Dickerson, ___ U.S. ___, 113 S.Ct.
2130, 2137 (1993) justified the seizure of the pill bottle containing
crack cocaine. In a separate concurrence, Judge Peay could not
agree that the finding of a prescription pill bottle in a defendant’s
jacket met the "immediately apparent" test in Dickerson. However,
he concluded that the officer had probable cause to believe that
the defendant was selling cocaine and that the search was proper
as incident to his arrest. This case gives the Tennessee Supreme
Court its first opportunity to consider the "plain touch" doctrine.
The case has been placed on the SCALES docket.
D. Speedy Trial: State v. Demetrius Dewayne Utley, No. 01C01-9307-CR-00195
(Tenn. Crim. App., Nashville, March 30, 1995) perm. to appeal
granted (state’s application) June 10, 1996. On June 4, 1987,
an arrest warrant issued charging Utley with robbery. Appellant
was not served with this warrant until June 13, 1992 even though
he was in custody for a large portion of that period. The state
concedes that the warrant was not served due to a lack of diligence
on their part. The trial court dismissed the charges because defendant’s
right to a speedy trial had been denied. The Court of Criminal
Appeals affirmed, holding that the issuance of an arrest warrant
is a formal accusation that triggers the right to a speedy trial.
In a similar case, State v. Wood, 924 S.W.2d 342 (Tenn. 1996),
the supreme court recently held that the return of sealed presentment
engages an accused’s right to a speedy trial. If the supreme court
holds that the arrest warrant triggered Utley’s right to a speedy
trial, the court must analyze the facts under Barker v. Wingo,
407 U.S. 514, 92 S.Ct. 2182 (1972) and Doggett v. U.S., ___ U.S.
____, 112 S.Ct. 2686 (1992). Utley also contends that the five-year
delay violated his due process rights. Under Tennessee law, a
due process analysis requires proof of actual, substantial prejudice
to a defendant’s right to a fair trial and intentional state delay.
State v. Benn, 713 S.W.2d 308 (Tenn. 1988); State v. Baker, 814
S.W.2d 352 (Tenn. 1981).
Criminal Responsibility
State v. Jubal Carson, No. 03C01-9502-CR-00048 (Tenn. Crim. App.,
Knoxville, Jan. 19, 1996) perm. to appeal granted June 3, 1996.
Appellant along with two others planned the robbery of a repair
shop that was actually an undercover sting operation of the Knoxville
Police Department. Appellant, who had waited in the car, became
nervous when he saw a police car cruising the area and drove away.
When his cohorts left the building, they were confronted by back-up
police. A chase ensued and shots were fired in a congested area
near busy Chapman Highway. Carson’s case was severed from that
of his co-defendants, and he was convicted of aggravated robbery,
two counts of aggravated assault, and reckless endangerment. The
Court of Criminal Appeals affirmed Carson’s convictions based
on Tennessee Code Annotated Section 39-11-402. This appeal provides
the opportunity to consider whether under the new code there is
any limitation on the conduct for which an aider and abettor may
be liable. Although Carson clearly helped to plan the robbery
and is liable for that offense and any crime that was a natural
and probable consequence of it, appellant argues that he should
not be liable for the reckless endangerment crimes committed by
the fleeing co-defendants after he had left the scene.
Death Penalty
State v. David Willard Phipps, Jr., No. 02C01-9412-CC-00269 (Tenn.
Crim. App., Nashville, Feb. 21, 1996) perm. to appeal granted
July 22, 1996. In this appeal, the supreme court will consider
whether an automatic sentence of life imposed when the state does
not seek the death penalty operates as an "acquittal" of the death
penalty for the purposes of double jeopardy analysis under Bullington
v. Missouri, 451 U.S. 430, 101 S.Ct. 1852 (1982), or whether,
under the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct.
2098 (1974), a prosecutor’s election to seek the death penalty
at a second trial creates a rebuttable presumption of vindictiveness.
In this case, the defendant was convicted of the first degree
murder of his wife’s boy friend. The state did not seek the death
penalty and Phipps automatically received a life sentence. The
Court of Criminal Appeals reversed the conviction because of an
error in the jury instructions. State v. Phipps, 883 S.W.2d 138
(Tenn. Crim. App. 1994). On remand, the state filed a notice of
intent to seek the death penalty based on the heinous, atrocious
and cruel aggravating circumstance. The state intends to rely
on a witness discovered shortly before the first trial and on
a letter written by the defendant that the state had previously
overlooked. The trial court granted defendant’s motion to strike
the notice as the state knew of the evidence supporting the aggravating
factor prior to the first trial. The CCA affirmed the trial court
because allowing the state to seek the death penalty on retrial
raises too great a risk of vindictive prosecution and piecemeal
litigation. The CCA based its opinion on the fairness analysis
found in State v. John David Terry, No. 01C01-9210-CR-00304 (Tenn.
Crim. App., Nashville, June 28, 1995), app. granted and remanded
to Court of Criminal Appeals. This analysis was rejected by the
supreme court in State v, Harris, ___ S.W.2d ___ (Tenn. 1996).
However, in Harris, its companion case, State v. Thompson, and
in Terry, the defendants, unlike Phipps, were sentenced to death
at their first trial.
DUI
A. Double jeopardy. State v. Jefferson Pennington, No. 01C01-9307-PB-00219
(Tenn. Crim. App., Nashville, Feb. 1, 1996) perm. to appeal granted
(state’s application) July 1, 1996. The trial court dismissed
Pennington’s indictment for DUI and for driving on a revoked license.
Defendant refused to take a breath alcohol test at the time of
his arrest. He was refused bail pursuant to a policy adopted by
the general sessions judges of Davidson County and committed to
the custody of the Sheriff’s Department for twelve hours even
though three unimpaired citizens were prepared to take custody
of the defendant upon posting of bail. The Court of Criminal Appeals
affirmed the dismissal. Special Judge C. Creed McGinley and Judge
John Peay, who concurred in the results only, held that the detention
period was punishment for failure to take the breath alcohol test,
that the defendant was in fact punished by the questioned policy,
and that, in this case, a post arrest detention without prior
adjudication operated as a punishment for the charged offenses.
Judge Tipton dissented arguing that since the detention stemmed
from defendant’s refusal to take a breath test rather than for
driving under the influence, the convictions did not violate double
jeopardy.
B. Intoximeter testing. State v. Farris John Hunter, III, No.
01C01-9504-CC-00118 (Tenn. Crim. App., Nashville, Jan. 17, 1996)
perm. to appeal granted May 6, 1996. Appellant questions whether
the results of an intoximeter test are admissible when an officer
other than the testing officer observes the defendant for the
required period before the test is administered. In other issues,
appellant contends that the trial court erred in allowing the
state to amend the indictment on the day of trial, in denying
the defense motion for a continuance, and in refusing to allow
a collateral attack on a previous conviction in a city court as
the city judge was not elected. The Court of Criminal Appeals
held that (1) changing the name of the county in which the defendant
had a previous conviction for DUI was proper; (2) that a continuance
was not necessary because the defendant had prior notice of the
conviction and because a defendant may collaterally attack a prior
conviction in a post conviction procedure; (3) that under Bankston
v. State, 908 S.W.2d 194 (Tenn. 1995) the city court was acting
as a de facto court and the judgment was not subject to nullification;
and (4) that the arresting officer’s observation of the defendant
for thirty minutes met the requirements established in State v.
Sensing, 843 S.W.2d 412 (Tenn. 1992).
Evidentiary Issues
A. DNA: State v. Bobby Ed Begley, No. 01C01-9411-CR-00381 (Tenn.
Crim. App., Nashville, Jan. 11, 1996 perm. to appeal granted July
1, 1996. This case questions whether DNA testing using the polymerase
chain reaction (PCR) method is admissible. Previous Tennessee
cases approving the admission of DNA testing have involved only
the older "restriction fragment length polymorphism" (RFLP) method.
The RFLP method can match a DNA sample to its donor; however,
few facilities can perform the expensive and time-consuming procedure
properly. Although PCR is faster, cheaper and more readily available,
it is a less definitive test and can only exclude an individual
as a possible donor of the sample. The Court of Criminal Appeals
held that the testimony was admissible for identification purposes
under Tennessee Code Annotated Section 24-7-117 once the conditions
for the admission of expert testimony were met. Other states have
admitted PCR test results. This case has been recommended for
the SCALES docket.
B. Expert Testimony: State v. Merlin Eugene Shuck, No. 03C01-9502-CR-00035
(Tenn. Crim. App., Knoxville, Feb. 1, 1996) perm. to appeal granted
July 1, 1996.
In another issue of first impression, the supreme court will consider
whether expert testimony on a defendant’s susceptibility to entrapment
is admissible. The Court of Criminal Appeals reversed Shuck’s
convictions for solicitation to commit first degree murder and
especially aggravated kidnapping because the trial court excluded
Dr. Eric Engum’s testimony on the defendant’s susceptibility to
entrapment. The state argues that, although evidence on an accused’s
mental state is admissible to negate the element of specific intent,
such evidence would be improper in entrapment cases. Entrapment
is an absolute defense and evidence of a defendant’s mental condition
would be used to excuse or defeat the criminal charge, not simply
lessen the offense as in those cases where the defendant alleges
a "diminished capacity."
C. Hearsay State v. Maurice Gordon, No. 01C01-9406-CC-00203
(Tenn. Crim. App., Nashville, Nov. 15, 1995) perm. to appeal granted
May 6, 1996. At trial, certain statements of the three-year-old
rape victim made in response to her mother’s questions were admitted
under the excited utterance exception to the hearsay rule. Appellant
contends that these statements were inadmissible because the statements
were neither spontaneous nor sufficiently contemporaneous with
the event. A second issue involves the testimony of a nurse practitioner
admitted under the medical diagnosis and treatment exception to
the hearsay rule. Appellant argues that the state failed to establish
that the victim knew she was providing the information for purposes
of medical diagnosis and treatment. The Court of Criminal Appeals
ruled that the mother’s questions did not detract from the spontaneity
of the remarks and that the victim’s statement made under the
stress of the rape and the pain of urination was an excited utterance.
On the second issue, the CCA reasoned that since the child was
in the emergency room, had undoubtedly visited doctors before,
and had experienced intense pain, the practitioner’s failure to
explain that the questions arose from a desire to diagnose and
treat did not render the victim’s statements inadmissible. In
February 1996, the Supreme Court heard arguments on a similar
issue in State v. Carl Lee McLeod, No. 01C01-9103-CR-00091 (Tenn.
Crim. App., Nashville, Sept. 9, 1993) consolidated with State
v. James Young, No. 01C01-9405-CC-00182 (Tenn. Crim. App., Nashville,
March 14, 1995) permission to appeal granted September 25, 1995.
The Supreme Court released its opinion in McLeod/Young October
14, 1996.
Fines
State v. John Derrick Martin, No. 01C01-9502-CR-00043 (Tenn. Crim.
App., Nashville, Dec. 19, 1995) perm. to appeal granted May 13,
1996. The issue is whether the Court of Criminal Appeals correctly
remanded this case to allow a jury to impose any appropriate fines.
Appellant was convicted of five felony counts for drug-related
offenses. The Court of Criminal Appeals affirmed the convictions
and the sentences as modified, but remanded the case to the trial
court holding that the trial court did not have jurisdiction to
impose fines of $10,000 per count. Appellant contends that the
CCA cannot remand his case solely to set the fine without reversing
his convictions because the state constitution requires that the
jury assess the fine at the time they find the fact. A second
issue involves the admissibility of evidence of another offense
committed by the defendant to prove intent and identity when the
defendant raised no material issues on the question of intent
and the evidence did nothing to establish identity other than
to show that the defendant had previously been involved in drug
dealing.
Post Conviction
A. Motion to Reopen. Lamar Fletcher v. State, No. 02C01-9602-CR-00055
(Tenn. Crim. App., Jackson, March 6, 1996) perm. to appeal granted
June 11, 1996. This case provides the supreme court with its first
opportunity to construe appellate procedure for motions to reopen
under Tennessee Code Annotated Section 40-30-217(c). The trial
court denied appellant’s motion to reopen his first petition for
post conviction relief as the ground for relief had been previously
determined. The Court of Criminal Appeals affirmed. The state
argues that the statute allows ten days to file an application
for permission to appeal in the CCA and does not provide for further
review. Therefore, if the CCA declines to set aside a trial court’s
order denying a motion to reopen, the movant may not seek permission
to appeal to the supreme court. B. Sentences outside the statutory
range. Terry L. Hicks, Jr. v. State, No. 02C01-9503-CC-00071 (Tenn.
Crim. App., Jackson, Jan 31, 1996) perm. to appeal granted July
1, 1996. Hicks pled guilty to voluntary manslaughter and received
a ten-year sentence. At that time, the maximum Range I sentence
was six years. Hicks contended that his guilty plea was not knowingly
and voluntarily entered, the sentence imposed was both excessive
and illegal, and that he was denied effective assistance of counsel
when he was advised to take a sentence outside the range. The
Court of Criminal Appeals found that Hicks knew that in exchange
for a reduced charge he would receive a sentence beyond the range
and held that Hicks had waived any irregularity in sentencing
by his knowing and voluntary plea of guilty. The CCA has had considerable
trouble with this issue and different panels have approved and
disapproved sentences outside the range in various cases.
Sentencing
A. State v. Chad Douglas Poole, No. 02C01-9506-CC-00178 (Tenn.
Crim. App., Jackson, Jan. 31, 1996) perm. to appeal granted (both
applications) July 8, 1996. Poole pled guilty to various counts
of theft, burglary and robbery. The trial court imposed a sentence
of twenty-one years for the felony of especially aggravated robbery.
The victim was a seventy-one-year old woman who ran a small grocery
store. A co-defendant knocked her unconscious with a baseball
bat. Her injuries were severe and her medical bills totaled more
than twenty-six thousand dollars. The trial court found that
the victim of the offense was particularly vulnerable because
of age or physical or mental disability. The state did not introduce
any evidence of particular vulnerability and the Court of Criminal
Appeals reluctantly held that, based on State v. Adams, 864 S.W.2d
31, 35 (Tenn. 1993), the trial judge erred in applying the factor.
The two concurring judges wrote separately to request that the
supreme court provide further guidance on this issue.
B. David E. Walton, Jr., No. 02C01-9501-CC-00007 (Tenn. Crim.
App., Jackson, Aug. 9, 1995) perm. to appeal granted June 6, 1996
(grant limited to sentencing issues). The defendant was sentenced
to 25 years each on two aggravated rape convictions, 12 years
each on two convictions for aggravated sexual battery, and 6 years
each on two convictions for incest. The trial court ordered that
the sentences for aggravated rape be served consecutively and
that the other sentences run concurrently. The Court of Criminal
Appeals affirmed the sentences holding that the trial court had
correctly applied three enhancement factors: factor 4, the victim
was particularly vulnerable because of her age; factor 7, the
offense
