Unjust executions

Sentencing errors send inmates who deserve life to their death, even after the mistakes are discovered and ruled unconstitutional.

By Dave Lindorff

May 6, 2003 | Dobie Gillis Williams was picked up in a police roundup after a woman was stabbed to death in her bathroom in rural Louisiana in 1987. With an IQ of 65, and a lawyer who was subsequently disbarred for incompetence, Williams was tried for murder, convicted and sentenced to death. He twice came within hours of execution, only to have the process stayed, first by the U.S. Supreme Court and a second time by the governor.

A federal judge finally overturned Williams' sentence, citing two errors: Williams had confessed only after a police officer promised Williams he wouldn't get the death penalty, and his attorney never offered any evidence of mitigating circumstances during the sentencing phase of his trial -- evidence that should have included Williams' mental deficit and a childhood of abuse and neglect.

But Williams was executed anyway in 1999, when the notoriously pro-death-penalty 5th Circuit Court of Appeals (which serves Louisiana, Mississippi and Texas) overturned the district court judge's decision, ruling that the revelation of errors came too late under the 1996 Effective Death Penalty Act (EDPA). Williams' appellate attorney, Nick Trentacosta of the Louisiana Center for Equal Justice, maintains that his client's execution was in error. The fact that mitigating evidence hadn't been presented to the jury wasn't in dispute -- just the timing of when that issue had first been raised on appeal.

Williams, whose case might seem unique in its disastrous outcome, was hardly unusual. Nobody has yet come up with an irrefutable example of an innocent person having been executed since states began reinstating the death penalty in 1976, but even death penalty advocates concede that sentencing errors in death penalty cases have led to the execution of many criminals who, by law, should not have received the ultimate sanction.

"There are definitely plenty of sentencing errors where those who die haven't deserved to die," says Robert Blecker, a self-described "staunch advocate" of the death penalty who teaches criminal law at New York Law School. Blecker, who believes that errors work both ways -- with people who should, in his view, be executed getting off -- adds that the main cause of wrongful executions is inadequate counsel and the failure to present mitigating evidence to the jury.

And, he says, such sentencing errors "tend to happen most often in cases where those who die don't really deserve to die." In the most heinous murders, he claims, sentencing errors are rare.

Appellate courts have found sentencing errors in more than 40 percent of all capital cases since 1973 -- when the Supreme Court ruled the existing death penalty statutes unconstitutional -- but there are no figures to indicate how many inmates were executed or remain on death row due to sentencing errors. Steven Hawkins, a staff attorney with the National Coalition to Abolish the Death Penalty, estimates that "at least 40 to 80" of the 800 people executed since 1977 "were probably victims of obvious error, such as failure to have mitigating circumstances raised at trial." An equal number, he adds, were "simply victims of the U.S. Supreme Court's failure to make various death penalty rulings retroactive" for all condemned inmates.

That last condition -- essentially, the stubborn upholding of fatal errors by the courts -- is remarkable, given the stakes. The decision to apply rulings exclusively to future cases, largely to avoid disrupting legal precedents, is typical of the U.S. Supreme Court. Most often, it is barely noted. But in death penalty cases the procedure has enormous impact. When a sentencing error has been exposed, often as an unconstitutional element of existing law, but not applied retroactively, it means that those on death row as a result of the same unconstitutional law will not be spared -- unless their case was specifically part of the appeal that brought the ruling.

Just last year, for instance, the Supreme Court ruled it was unconstitutional for death penalties to be determined by trial judges. Rather, the court held, that decision belongs to juries alone. Yet a number of condemned men -- in states such as Alabama, Arizona, Colorado, Delaware, Florida, Idaho, Indiana, Montana and Nebraska -- have subsequently been executed after being sentenced to death by judges -- sometimes, as in the case of Alabama, Delaware, Florida and Indiana, by judges who actually overruled juries that had recommended a lesser sentence. More prisoners, with older cases, are still being sent to their unconstitutional death. In fact, this is true for many, if not most, of the Supreme Court's more far-reaching death penalty decisions.

Next page: The death penalty is supposed to be applied to the worst of the worst offenders, but it's not