July 7, 2000
By Rodolfo F. Acuna
Back in the 1960s, when debate about capital punishment was popular, comedian Mort Saul quipped that sure he was for capital punishment, how else could you teach the executed person a lesson. Since that decade the discussion of the morality of capital punishment has been left to the religious.
The debate, however, heated up during the 1988 election and Democratic party presidential candidate Michael Dukakis paid the price for opposing the death penalty. George Bush Sr. dredged up the death penalty in the debates, and ran incendiary commercials about Willie Horton, a black man, convicted of murder who committed rape and robbery in Maryland while on a weekend furlough from a Massachusetts prison.
Bill Clinton, ever adept at stealing a right-wing issue, staunchly defended the death-penalty in 1992. During the campaign he flew back to Arkansas to preside over the execution of Ricky Ray Rector, a severely brain-damaged prisoner.
Public opinion has for the moment shifted from a certainty that they got the right guy to a unaccustomed caution among Americans, who are concerned that new DNA revelations are casting doubt as to whether they are killing the right guy. The fact that for every seven executions, some 500 since 1976 one other prisoner on death row has been found innocent, has disturbed the faith of many true believers. Republican Governor George Ryan of Illinois, for example, declared a moratorium on executions in January 2000, citing the fact that Illinois had exonerated thirteen death-row inmates since 1976 for his decision.
The presence of Latinos on death row up to this point was not noted by the public; after all no movies have featured them on death row. But, like in life, behind the scenes, we're always there. One of the cases contributing to Ryan's conversion was that of Rolando Cruz, who spent twelve years on the Illinois Death Row for the 1983 murder and rape of a ten-year-old girl. The state charged Cruz and Alejandro Hernandez, although police had arrested a repeat sex offender and murderer who confessed to the crime and who DNA testing linked to the murder.
At Cruz's first trial an expert claimed that she could tell a person's class and race by shoe imprints. At the third trial in 1995, a police officer admitted that he had lied when he testified Cruz had confessed in a "vision" about the girl's murder. The judge declared Cruz not guilty. They brought criminal charges against the authorities who prosecuted Cruz.
Unfortunately, the public seems less concerned over cases where the person is convicted on false evidence, racial discrimination, and improper and incompetent representation. Take the case of Manuel Salazar who in 1985 was sentenced to death in the murder of Martin Murrin, a Joliet, Illinois, police officer in 1984. When Murrin and his partner stopped Salazar and four other Latinos and blacks on the usual grounds of suspicion, Salazar panicked and ran, carrying a gym bag with a gun. Cornered at a fence, Salazar threw his bag over the fence. The officer pulled a throw gun and severely beat Salazar who struggled for the gun. It discharged, killing Murrin.
Salazar, fearing for his life, fled to Texas and then to Mexico, from where US authorities illegally extradited him. Salazar had an incompetent defense, whom a state agency suspended for incompetence. In 1994 the Illinois Supreme Court overturned the murder conviction in a 6-1 decision. The court cited the judge's improper instructions to the jury that took away the option of finding Salazar guilty of manslaughter.
Some twenty inmates sit on the federal government's death row, fourteen are black, four white, one Latino and one Asian. Juan Raul Garza, a Mexican American, is scheduled to be executed on August 5, 2000. The first inmate to be executed by the federal government in more than thirty- five years. A federal court convicted Garza under the 1988 federal "drug kingpin" law, allowing the death penalty for anyone convicted of murder in furtherance of an illegal drug enterprise. Critics posit that federal authorities pushed for the death penalty because of Garza's race. Improprieties occurred at the punishment phase of Garza's trial such as the prosecutors introducing testimony that Garza committed four murders in Mexico for which he was never prosecuted. There was a clear pattern of racism under George Bush Sr.'s administration, which sought the death penalty for drug-related killings for twenty-seven defendants, twenty-three of whom were African-American or Latino. This disparate treatment does not seem to bother most Americans, who would rationalize that at least they got the right guyGarza deserves to die.
George W. Bush, the son, a self-described "compassionate conservative," also seems oblivious to the question of justice or discrimination. He has presided over 135 executions, more than any governor in US history. When asked how he could be so certain that in all of those executed on his watch were guilty, he replied "I'm confident of the guilt of the person who committed the crime," which the reasonable person would infer meant that every executed person received a fair trial.
An investigative piece by The Chicago Tribune raises doubts: Out of 131 persons executed a death row by George W.: state agencies publicly sanctioned forty-three defense attorneys for misconduct, either before or after their work on these cases. Forty involved defense attorneys who presented no evidence or only one witness during the sentencing phase. Twenty-nine included a psychiatrist who gave unethical and untrustworthy testimony. Twenty-three included jailhouse informants. Twenty-three included visual hair analysis, which has consistently proved unreliable. Further, Texas does not have a statewide public defender system. The counties pay legal counsel for poor defendants, and Texas ranks 40th among states in money it spends on indigent defense.
The guilt of the defendant alone does not determine the issue of justice. A basic principle of law is that all persons are equal before the law. When racial minorities or poor people do not receive the same protections as white people or those with money this is disparate treatment. Take the case of Jesse San Miguel, 28, who recently died of lethal injection in Texas. Bush refused to grant him thirty more days to explore whether racially tinged remarks biased the jury that sentenced him to death for a 1991 rampage that left four dead. During the trial, San Miguel's defense attorney raised the race question, asking several witnesses about the "pushy and macho" attitude of Mexican Americans, saying Mexicans had a propensity for fighting, inferring that it was part of the culture. The prosecutor asked jurors to pay attention to those who "cross that border" when committing crimes. An expert witness for the state told jurors in several trials that Latinos and blacks were more likely to be dangerous in the future than whites.
Texas executed Leonel Herrera in 1993 for a 1982 murder though another man confessed to murdering two South Texas police officers. Eight years later, on the verge of his execution, a lawyer signed an affidavit saying that Herrera's brother had confessed to the killings. Texas courts refused to reopen the case because the new evidence had come long after their 30-day limit for additional evidence. The U.S. Supreme Court ruled six to three that Texas's time limitation was constitutional. Justice Blackmun, voting with the minority, said caustically from the bench that "the execution of a person who can show that he is innocent comes perilously close to simple murder."
Although the improprieties in these cases did not bother George W., the U.S. Supreme Court seemed concerned about the introduction of discriminatory evidence. In June 2000 it ordered Texas court to provide a new sentence hearing to death-row inmate Victor Hugo Saldano. The high court ruled that the prosecution used racially discriminatory evidence, violating the equal protection clause of the U.S. Constitution's 14th Amendment. A psychologist had testified about Saldano's "future dangerousness" based on his being a Latino. The Texas Court of Criminal Appeals had previously ruled that the prosecution's use of ethnicity as a factor death sentencing was not a "fundamental error."
The facts did not bother George W. who continued to campaign as the friend of Mexicans. Incredibly Mexican American organizations did not question George W. on racist practices in prosecuting and sentencing Latinos. Texas executed three inmates in three days, with eight more scheduled before the end of June 2000. Bush was going for the record of thirty-seven executions in a single year (1997). At this writing, ten Mexican Americans await execution in Texas alone.
Unfortunately the skepticism about the fool proof nature of the application of the death penalty has not extended to youth. Between 1992 and 1997, 47 states passed laws making it easier to try children as adults. Of the thirty-eight death penalty states, nineteen execute 16- and 17-year-olds and four execute those seventeen and older. Former California Gov. Pete Wilson, the architect of California's recently passed Proposition 21, proposed that the age for the death penalty should be lowered to fourteen. Texas legislator Jim Pitts proposed lowering it to eleven.
The United States and the collapsed state of Somalia are the only countries in the United Nations not to ratify the organizations 10-year-old U.N. Convention on the Rights of the Child, which forbids the death penalty against youths under eighteen. Similarly, it has not signed the International Covenant on Civil and Political Rights, because it also bans the execution of those who commit crimes under the age of eighteen. The US has executed twelve men for crimes committed as juveniles since 1976. Since 1985 only the USA, Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Yemen have executed juveniles.
In conclusion, California, which enjoys a more tolerant reputation than Texas, is not too far behind it. Witness the passage of Proposition 21, which effectively lowers the age of the youthful offender. Like Texas and other states California has scuttled or at least handicapped its once vaunted juvenile justice system. The Ramparts case also puts into question convictions. California today has the largest death row in the nation with 560 inmates. About 100 of these are Latinos; about 200 blacks.
Unlike many pundits, I do not place too much hope on the current trends that show that a substantial number of Americans beginning to soften on their faith that the system is executing only the guilty. Criticism does not extend to the process, which treats those of color and the poor differently. Moreover, looking at the problem historically, the American public is fickle, witness its softening on the abortion question. All it takes to for Americans to revert is a little recession, another evil empire.
(Acuña is a professor of Chicana/o Studies, California State University, Northridge.)