In 1999, when Frank McFarland, convicted of sexual assault and murder, lay strapped to a gurney at Huntsville Prison, and received a dose of lethal poison in his vein, Rick Halperin watched.
"It is one of the most horrible things I've ever seen," says Halperin, president of the Texas Coalition to Abolish the Death Penalty and professor of human rights at Southern Methodist University in Dallas. "It was pure evil and hatred, the worst of the heart of humanity. In that moment, there was nothing about innocence or guilt, only the hatred of the state."
Two recent Supreme Court decisions could jettison hundreds of inmates from death row; on July 1, U.S. District Court Judge Jed Rakoff ruled the federal death penalty unconstitutional. (The federal government is expected to appeal.)
Anti-death penalty advocates see these rulings, the moratoriums on capital punishment in Illinois and Maryland, and a change in public and legal opinion as factors toward eliminating the death penalty in the U.S.
The first high court decision outlaws the execution of mentally retarded offenders because it is cruel and unusual punishment — a violation of the Eighth Amendment. Since 1976, states have executed 34 mentally retarded offenders; Texas has executed at least five. (See box, facing page)
"This decision excludes an entire class of people from eligibility for the death penalty," says Sue Gunawardena-Vaughn, program director of Amnesty International's project to abolish the death penalty. "The judges decided this on the basis of public opinion. People's perceptions are changing about the notions of decency."
A Gallup poll taken in May showed that 82 percent of Americans oppose executing mentally retarded offenders, while 18 percent approve of it. Before the Supreme Court ruling, 30 states, including 18 that enforce the death penalty, did not execute mentally retarded inmates.
In the second ruling, the Supreme Court also ordered that juries, not only judges, can condemn a person to death. Now more than 100 inmates must receive new sentencing hearings. This decision doesn't affect any Texas Death Row inmates.
"It's not an abolitionist decision because juries can award the death penalty equally as judges," explains Gunawardena-Vaughn. "In a lot of cases when juries are given the option of life without parole, they overwhelming choose that."
Since the death penalty was reinstated in the U.S. on July 2, 1976, the states have executed more than 780 people, including 17 juveniles; Texas leads the nation with 272 killings.
But Illinois Governor George Ryan declared a death penalty moratorium after 11 death row inmates were discovered to be innocent; Maryland Governor Parris Glendening followed suit after an investigation revealed that a disproportionate of minorities had been condemned to death in that state. According to Amnesty International statistics, more than 52 percent of all death row inmates are people of color and 81 percent of victims of capital crimes are white.
At least 23 innocent people have been executed in the United States. "The execution of an innocent person is the ultimate nightmare," says Gunawardena-Vaughn. "It happens more than one might think."
Americans' support of the death penalty has bottomed to a 20-year low. Sixty-seven percent of the personas surveyed in a Harris poll support the death penalty, down from 75 percent who said they approved of it in 1997. When alternative sentences are offered, the approval rating drops to about 50 percent.
Death penalty opponents hope this sea change in public opinion will persuade Congress to pass the Innocence Protection Act, which would allow Death Row inmates more access to DNA testing and guarantees indigents better legal representation.
The progress toward eliminating the death penalty has its opponents feeling optimistic about the power of the movement — albeit cautiously. "There are still going to be people killed this month," notes Halperin. "That's a sobering thought. Some people who should be pardoned are going to lose to this fight to the execution machine.
"I have seen a great change in the courts, in that they are no longer avenues of hope. They close their ears to local activism and make the issue into a popularity contest," Halperin continues. "Each judge on the Supreme Court thinks it is acceptable, under certain circumstances, to kill people under the law. No one who works against the death penalty needs to apologize. It is a moral crime to sustain a philosophy of human extermination. But we need to be optimistic about the future. The goal is total abolition and it's going to happen."
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