Justice For Arthur Tyler

When the U.S. Supreme Court reinstated the death penalty in 1976, our nation embarked upon a grand experiment. The hope was that new detailed procedures would result in a death penalty unaffected by the lingering racial bias of slavery and lynchings and impervious to arbitrary application. That experiment, however, has failed. DNA evidence alone has proved that some prisoners on death row were convicted of crimes they had not committed, and they have been exonerated. The question now is, How do we end the death penalty and extricate ourselves from the failed experiment?

One obvious answer is that our Supreme Court justices could change their position on the constitutionality of capital punishment. There is manifest legal justification for them to do so. And if just one of the five Catholic justices were to change his position on capital punishment, the use of the death penalty would end in the United States.

That became clear in June 2006 in a 5-to-4 Supreme Court decision in the case Kansas v. Marsh. The specific legal issue in the case concerned the Kansas death penalty statute, which makes death the default option. If a jury finds that the factors favoring a death sentence (aggravators) are equal to the factors against a death sentence (mitigators), the Kansas law requires the jury to impose a death sentence. The five-justice majority on the Supreme Court sustained the constitutionality of the Kansas statute.

A closer examination, however, reveals that the issue actually being argued through the majority, concurring and dissenting opinions in Kansas v. Marsh regards executing the innocent. The four dissenting justices?none of them Catholics?expressed concern about the state of the American death penalty, its arbitrariness and the consequent great risk of executing the innocent.

The five Catholic justices, however, favored continuing the death penalty. The majority opinion, written by Justice Clarence Thomas, notes: ?Indeed, the logical consequence of the dissent?s argument is that the death penalty can only be just in a system that does not permit error. Because the criminal justice system does not operate perfectly, abolition of the death penalty is the only answer to the moral dilemma the dissent poses.? Thomas then proceeds to rely on precedent: execution of the innocent should not be of concern to the U.S. Supreme Court as long as proper procedures are followed.

In his concurring opinion, Justice Antonin Scalia addresses the dissenters without responding to their concern about innocence. Scalia implies that their concern would in fact end the death penalty in the United States, saying: ?Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.? The three other Catholics?Chief Justice John G. Roberts and the associate justices Samuel A. Alito and Anthony M. Kennedy?joined with Thomas and Scalia to continue the U.S. death penalty. Scalia?s comment does not address the concern of the dissent, which can be paraphrased thus: Why not let mistakes be a basis for sentences of life imprisonment, which is reversible, rather than execution, which is not?

New Opportunity Before the Court

A case has now been accepted for Supreme Court review that offers a possibility for a re-examination of the death penalty. In Baze v. Rees, the court has agreed to consider the constitutionality of lethal injection as practiced in Kentucky. The specific issue is: Does the state?s lethal injection process, the mix of drugs prescribed in Kentucky and in all but one of the 36 other states that allow the death penalty, violate the Eighth Amendment?s ban on cruel and unusual punishment because it can inflict unnecessary pain and suffering? A court decision is expected before the end of June 2008.

As seen in Kansas v. Marsh, however, the Supreme Court will not be limited in its decision in Baze to the specific issue of lethal injection. The court could use this opportunity to find the death penalty unconstitutional. There are ample sound legal reasons for it to do so.

For over 25 years, the U.S. Catholic bishops have worked to end the death penalty. The church teaches that the death penalty should not be used unless there is no other way to protect innocent life in society? a situation that in modern American society is simply unimaginable. Yet one does not even reach the point of testing the requirement until ?the guilty party?s identity and responsibility have been fully determined? (Catechism of the Catholic Church, No. 2267). The thicket of U.S. legal precedents, doctrines and statutes prohibiting courts from hearing late-discovered evidence of innocence and mitigation makes it impossible to satisfy the first requirement of the Catholic catechism. This is especially true of the legal doctrine called ?procedural bar,? which limits or prohibits court review of such late-discovered evidence, even if it was hidden by the state.

Furthermore, U.S. death penalty jurisprudence contravenes the explicit commands of Scripture. There is no mandate in Scripture or in the Judeo-Christian tradition for maintaining a system of flawed justice that knowingly risks the execution of the innocent. On the contrary, Scripture commands, ?Do not execute the innocent? (Ex 23:7). From a faith perspective as well as a constitutional perspective, the U.S. death penalty is inherently defective because it unnecessarily creates the risk of executing the innocent.

One might be concerned that Supreme Court justices should not be influenced by the teachings of their faith in making decisions. For at least two reasons such a concern is not an issue in this case.

First, the constitutional test for whether punishment is cruel and unusual under the Eighth Amendment is the ?evolving standards of decency that mark the progress of a maturing society.? Changes in the fabric of American society, even when driven by principles of faith, are properly recognized in the evaluation of whether the death penalty constitutes cruel and unusual punishment.

Second, the actual numbers and places of executions over the last 31 years indicate that Catholic teaching on the death penalty may have influenced the evolving standards of decency of American society. Perhaps this is because the number of Catholics has grown to some 65 million in the United States, roughly a quarter of the population, according to the U.S. Conference of Catholic Bishops. That is about four times the size of the next largest denomination, the Southern Baptist Convention, with approximately 16 million members; it is over seven times the size of the two next largest groups, the National Baptist Convention USA and the United Church of Christ, each of which has about 8.5 million members.

More Catholics, Fewer Executions

By integrating execution statistics from the nonprofit Death Penalty Information Center in Washington, D.C., with state-by-state statistics about religious adherents available from the Association of Religious Data Archives maintained by Pennsylvania State University, one can make correlations between religion and executions.

Since 1976 there have been 1,096 executions at the state level (excluding three federal executions). That means that across 51 jurisdictions (the 50 states plus the District of Columbia), the average number of executions over the 31 years is 21 per state. The distribution of these executions, however, is drastically skewed by the predominant religious influence. Almost 88 percent of the 1,096 executions have occurred in the Bible Belt?the 11 states and territory (Oklahoma) of the former Confederacy and the slaveholding border states?where the greatest religious influence is still Southern Baptist. The Southern Baptist Convention is the only major American religious denomination to declare formally that Scripture mandates the death penalty (June 2000). More than 91 percent of executions have occurred in just 14 states. Of the other 36 states, 14 and the District of Columbia do not have the death penalty. Of the rest, they are either minimally participating (with small death rows or few executions) or have had no executions since 1976.

Even more impressive is the inversely proportional relationship between the size of the Catholic population and the number of executions. In general, the more Catholics there are in a given jurisdiction, the fewer the executions. In the 19 jurisdictions where Catholics make up more than 21 percent of the population, the average number of executions over the past 31 years is only 3 per state. In the 19 states where Catholics make up less than 16 percent of the population, the average number of total executions per state over 31 years is 25. For the 12 states where Catholics are less than 10 percent of the population, the average number of total executions per state over 31 years is 32, more than 10 times the number in states where the Catholic presence is largest.

In December 2007, the state of New Jersey, the third most Catholic state in the nation, became the first since 1976 to abolish the death penalty through legislation. New York, the fourth most Catholic state, has ended it judicially. Neither state has had any executions in the last 31 years. The eight most Catholic states in the nation have had a combined total of only two executions in the last 31 years.

The correlation between Catholic presence and America?s evolving standards of decency is even more striking at the national level. The annual number of executions climbed from 1976 until it peaked in 1999. That year Pope John Paul II stood on American soil and renewed his appeal ?for a consensus to end the death penalty, which is both cruel and unnecessary.? While no one can prove a causal link here, a correlation exists: Since then, the annual number of executions in the United States has dropped by more than half, from 98 to 42. In that same period, the annual number of new death sentences also dropped by 60 percent.

The same correlation shows up in national polls. A Gallup poll in 2006 showed that the percentage of Americans who prefer life without parole instead of the death penalty has grown from 32 percent in 1994 to 48 percent. Given a choice between the two, the percentage of Americans who favor the death penalty has dropped from 50 percent in 1994 to 47 percent in 2006. For the first time since the death penalty experiment began, the percentage of Americans who prefer life imprisonment is higher than the percentage who prefer capital punishment. This attitude squares well with Catholic teaching, which precludes recourse to the death penalty unless no other means are available in a society to protect innocent life.

America?s evolving standard of decency, which marks the progress of our maturing society with respect to the death penalty, has been influenced to some extent by the growing presence of Catholics. Our Catholic Supreme Court justices should recognize the development and change their position on capital punishment. If just one justice were to make the change, the death penalty could soon be abolished in the United States.

Update: On April 17, the day after this article was published, the U.S. Supreme Court handed down a decision in Baze v. Rees, ruling that the drugs used to execute criminals in Kentucky did not cause unnecessary pain and thus was constitutional. While the Court had the option to approach the decision in a broad way, which would have allowed it to address the constitutionality of capital punishment, it opted for the opposite approach. All seven of the written opinions state, in some way or other, that the court?s decision assumes the constitutionality of capital punishment. Some of the opinions, including that rendered by Justice Samuel A. Alito, Jr., go so far as to say explicitly that the constitutionality of lethal injection itself has been assumed in the decision.

The decision is so narrow that even some of the justices who joined in the majority expressed concern that the Court has created a minefield of future death penalty litigation. Many Court observers and commentators concur. The constitutionality of capital punishment under ?the evolving standards of decency marked by the progress of a maturing society,? in the words of the Eighth Amendment, still remains to be addressed.

Finally, despite the 7-to-2 decision, the basic split on the U.S. Supreme Court on the issue of capital punishment remains 5-to-4, with the Catholic Justices counting as the five. Two of the seven justices that joined in the majority renewed their concerns about capital punishment. One, John Paul Stevens, went so far as to explicitly call for its abolition. Consequently, it is still possible for one Catholic U.S. Supreme Court Justice to recognize that church teaching has impacted ?the evolving standards of decency? and tip the balance against the continued use of capital punishment in the U.S.

CLICK ON THE PAGE OF LETTER TO ENLARGE THE TEXT

Art Tyler was on death row when I was there. He continually stated that he did not commit this crime. I believe him. I know what was done to me and I believe there are others on death row that are innocent. When another has confessed to doing this crimel why has this been discounted?

Sincererly, Dale Johnston

Dale spent 6 years on Ohio's Death Row before being release with the charges against him dismissed.

by Regina Brett /Plain Dealer Columnist

Wednesday January 28, 2009,

Eddie Sanders doesn't want the state to execute the man who killed his sister. Eddie doesn't want to lose another family member.

Eddie knows there's a saint inside the worst of us and a sinner inside the best of us. His sister, Emma Dee Hill, was a bit of both. The woman who loved God and church and believed life was a precious gift once took a gun to the family reunion.

She used to lock the refrigerator to keep her two boys from eating. But she loved her sons so much that Jeffrey dropped out of high school to take care of her when a stroke paralyzed her right side.

Eddie knows that Jeffrey loved her, except for that horrible time in his life when he loved crack cocaine more.

Jeffrey turned to crack after his dad died of cancer.

One night, Jeffrey binged on $400 worth of cocaine. That night 18 years ago, he lost his mind.

When it came back, he learned he had stabbed his mother to death. Eddie never forgot the sight of his 26-year-old nephew weeping in a jail cell, begging for forgiveness. Eddie gave it. It took a long time.He loved his sister.

On Thursday, Eddie will travel to Columbus to beg for his nephew's life.

A dozen jurors convicted Jeffrey of aggravated murder in 1992.

Back then, the prosecutor offered no plea bargain. The jury had two choices: Acquit and he would go free; find him guilty and he would be sentenced to death.

A dozen relatives of the murdered woman want Jeffrey's sentence commuted.

He is scheduled to die March 3.

They wrote the Ohio Parole Board begging for mercy, calling themselves "a small family who has endured a huge tragedy." They never imagined they would have to plead for the life of one of their own convicted for the murder of one of their own.

Eddie, who is 65, traveled from Cincinnati to Youngstown to see his nephew. "He's a changed man," Eddie said.

Jeffrey had no prior adult felony convictions. He got in some trouble as a teen once and ended up in a boys home.

Eddie couldn't remember the details. The attorneys fighting for clemency compare this case to a man who stabbed to death his dad while on a crack cocaine binge in 1992.

Jackie Smith was convicted and sentenced in Hamilton County, the same as Hill, but got 15 years to life. Smith served 13 of them and was released on parole in 2006.

Jeffrey's attorney waived his opening statement and presented no witnesses. He hired a psychologist to talk about Jeffrey's crack addiction, but not until the night before the sentencing trial.

The Hamilton County prosecutor opposes commutation, stating the jury "felt that capital sentence was appropriate."

But he knows they might have chosen differently had they been given the option of life without parole.

The governor has that option. Jeffrey, who is 44, has served 16 years

 He goes before the parole board for a clemency plea Thursday at 10 a.m. in Columbus.

Eddie said no one in the family wants him to die. "He's paid," Eddie said. "He'll always have it on his mind that he killed his mom. I'm hoping they say life in prison.

Emma woulda felt bad if we would sit by and not do something for him." Executing Jeffrey Hill, their nephew, their brother, their cousin, would only bring Emma's family more pain.

Commuting his sentence to life harms no one. It would be a tremendous act of mercy and grace, one this family surely deserves.

For previous columns visit cleveland.com/brett