The Case Against the Death Penalty

The Case Against The Death Penalty
by Hugo Adam Bedau


--------------------------------------------------------------------------------


Contents
Preface

Introduction

Deterrence

Unfairness

Inevitability of Error

Barbarity

Retribution

Financial Costs

Public Opinion

Abolition Trends

For Further Information & Reference

Notes


--------------------------------------------------------------------------------


Preface
Hugo Adam Bedau is Fletcher Professor of Philosophy at Tufts University. He has written and edited a number of books on political philosophy and on capital punishment, including Death is Different (1987) and The Death Penalty in America, 3rd edition (1982 ). He gratefully acknowledges the assistance of Henry Schwarzschild, Director Emeritus of the ACLU Capital Punishment Project.
The American Civil Liberties Union holds that the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantee of due process of law and the equal protection of the laws. The imposition of the death penalty is inconsistent with fundamental values of our democratic system. The state should not arrogate unto itself the right to kill human beings, especially when it kills with premeditation and ceremony, under color of law, in our names, and when it does so in an arbitrary and discriminatory fashion. In the judgment of the ACLU, capital punishment is an intolerable denial of civil liberties. We shall therefore continue to seek to prevent executions and to abolish capital punishment by litigation, legislation , commutation, or by the weight of a renewed public outcry against this brutal and brutalizing institution.

Capital Punishment Project
American Civil Liberties Union
122 Maryland Avenue, N.E.
Washington, D.C. 20002

ISBN 0-86566-063-8
(c) American Civil Liberties Union
Permission to reprint, with credit given to the source, is granted.



--------------------------------------------------------------------------------


Introduction
In 1972, the Supreme Court declared that under then existing laws "the imposition and carrying out of the death penalty ... constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (Furman v. Georgia, 408 U.S.238) The majority of the Court concentrated its objections on the way death-penalty laws had been applied, finding the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes, and factual situations.
But within four years after the Furman decision, more than 600 persons had been sentenced to death under new capital-punishment statutes that provided guidance for the jury's sentencing discretion. These statutes typically require a bifurcated (two-stage) trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In July 1976, the Supreme Court moved in the opposite direction, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that these new statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." (Gregg v. Georgia, 428 U.S.153) Thus the states as well as Congress have had for some years constitutionally valid statutory models for death-penalty laws, and more than three dozen state legislatures have enacted death penalty statutes patterned after those the Court upheld in Gregg. In recent years, Congress has enacted death penalty statutes for peacetime espionage by military personnel and for drug-related murders.

Executions resumed in 1977, and by the early 1990s nearly three thousand persons were under sentence of death and more than 180 had been executed.

Despite the Supreme Court's 1976 ruling in Gregg v. Georgia, the ACLU continues to oppose capital punishment on moral and practical, as well as on constitutional, grounds:


Capital punishment is cruel and unusual. It is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those other barbaric practices, executions have no place in a civilized society.

Opposition to the death penalty does not arise from misplaced sympathy for convicted murderers. On the contrary, murder demonstrates a lack of respect for human life. For this very reason, murder is abhorrent, and any policy of state-authorized killings is immoral.

Capital punishment denies due process of law. Its imposition is arbitrary and irrevocable. It forever deprives an individual of benefits of new evidence or new law that might warrant the reversal of a conviction or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of the equal protection of the laws. It is applied randomly at best and discriminatorily at worst. It is imposed disproportionately upon those whose victims are white, on offenders who are people of color, and on those who are themselves poor and uneducated.

The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unfettered discretion to "guided discretion." These changes in death sentencing have proved to be largely cosmetic. They merely mask the impermissible arbitrariness of a process that results in an execution.

Executions give society the unmistakable message that human life no longer deserves respect when it is useful to take it and that homicide is legitimate when deemed justified by pragmatic concerns.

Reliance on the death penalty obscures the true causes of crime and distracts attention from the social measures that effectively contribute to its control. Politicians who preach the desirability of executions as a weapon of crime control deceive the public and mask their own failure to support anti-crime measures that will really work.

Capital punishment wastes resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and correctional personnel. It unduly burdens the system of criminal justice, and it is therefore counterproductive as an instrument for society's control of violent crime. It epitomizes the tragic inefficacy and brutality of the resort to violence rather than reason for the solution of difficult social problems.

A decent and humane society does not deliberately kill human beings. An execution is a dramatic, public spectacle of official, violent homicide that teaches the permissibility of killing people to solve social problems -- the worst possible example to s et for society. In this century, governments have too often attempted to justify their lethal fury by the benefits such killing would bring to the rest Or society. The bloodshed is real and deeply destructive of the common decency of the community; the benefits are illusory.

Two conclusions buttress our entire case: Capital punishment does not deter crime, and the death penalty is uncivilized in theory and unfair and inequitable in practice.


--------------------------------------------------------------------------------


Deterrence
The argument most often cited in support of capital punishment is that the threat of executions deters capital crimes more effectively than imprisonment. This claim is plausible, but the facts do not support it. The death penalty fails as a deterrent for several reasons.
--1--
Any punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions.

Only a small proportion of first-degree murderers is sentenced to death, and even fewer are executed. Although death sentences since 1980 have increased in number to about 250 per year,(1) this is still only 1 per cent of all homicides known to the police.(2) Of all those convicted on a charge of criminal homicide, only 2 percent -- about 1 in 50 -- are eventually sentenced to death.(3)

The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 (Woodson v. North Carolina, 428 U.S. 280).

Considerable delay in carrying out the death sentence is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with empaneling the trial jury, murder trials take far longer when the death penalty is involved. Post-conviction appeals in death-penalty cases are far more frequent as well. All these factors increase the time and cost of administering criminal justice.

The sobering lesson is that we can reduce such delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts, with the attendant high risk of convicting the wrong person and executing the innocent.

--2--
Persons who commit murder and other crimes of personal violence either premeditate them or they do not. If the crime is premeditated, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not deter those who expect to escape detection and arrest. If the crime is not premeditated, then it is impossible to imagine how the threat of any punishment could deter it. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Impulsive or expressive violence is inflicted by persons heedless of the consequences to themselves as well as to others.

Gangland killings, air piracy, drive-by shootings, and kidnapping for ransom are among the graver felonies that continue to be committed because some individuals think they are too clever to get caught. Political terrorism is usually committed in the name of an ideology that honors its martyrs; trying to cope with it by threatening death for terrorists is futile. Such threats leave untouched the underlying causes and ignore the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

The attempt to reduce murders in the illegal drug trade by the threat of severe punishment ignores this fact: Anyone trafficking in illegal drugs is already betting his life in violent competition with other dealers. It is irrational to think that the death penalty--a remote threat at best -- will deter murders committed in drug turf wars or by street-level dealers.

--3--
If, however, severe punishment can deter crime, then long term imprisonment is severe enough to cause any rational person not to commit violent crimes. The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence in certain cases.


(a) Death-penalty states as a group do not have lower rates of criminal homicide than non-death penalty states. During the 1980s, death-penalty states averaged an annual rate of 7.5 criminal homicides per 100,000 of population; abolition states averaged a rate of 7.4.(4)

(b) Use of the death penalty in a given state may increase the subsequent rate of criminal homicide in that state. In New York, for example, between 1907 and 1964, 692 executions were carried out. On the average, over this 57-year period, one or more executions in a given month aided a net increase of two homicides to the total committed in the next month.(5)

(c) In neighboring states -- one with the death penalty and the others without it -- the one with the death penalty does not show a consistently lower rate of criminal homicide. For example, between 1972 and 1990, the homicide rate in Michigan (which ha s no death penalty) was generally as low as or lower than the neighboring state of Indiana, which restored the death penalty in 1973 and since then has sentenced 70 persons to death and carried out 2 executions.(6)

(d) Police officers on duty do not suffer a higher rate of criminal assault and homicide in states that have abolished the death penalty than they do in death-penalty states. Between 1973 and 1984, for example, lethal assaults against police were not significantly more or less frequent in abolition states than in death-penalty states. There is "no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment."(7)

(e) Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states.(8) Between 1984 and 1989, seventeen prison staff were murdered by prisoners in ten states; of these murders, 88 percent (15 of 17) occurred in death penalty jurisdictions -- just as about 88 percent of all the prisoners in those ten states were in death penalty jurisdictions.(9) Evidently, the threat of the death penalty "does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist state."(10)

Actual experience establishes these conclusions beyond a reasonable doubt. No comparable body of evidence contradicts them.
Three investigations since Furman, using methods pioneered by economists, reported findings in the opposite direction.(11) Subsequently, several qualified investigators have independently examined these claims, and all have rejected them.(12) The National Academy of Sciences, in its thorough report on the effects of criminal sanctions on crime rates, concluded: "It seems unthinkable to us to base decisions on the use of the death penalty" on such "fragile" and "uncertain" results. "We see too many plausible explanations for [these] findings ... other than the theory that capital punishment deters murder."(13)

Furthermore, cases have been clinically documented where the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome -- persons who wanted but feared to take their own life and committed murder so that society would kill them.(14)

It must, of course, be conceded that inflicting the death penalty guarantees that the condemned person will commit no further crimes. This is an incapacitative, not a deterrent, effect of executions. Furthermore, it is too high a price to pay when studies show that very few convicted murderers ever commit another crime of violence.(15) A recent study examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to life by the Supreme Court's ruling in Furman. The research showed that 6 had committed another murder. But the same study showed that in 4 other cases, an innocent man had been sentenced to death.(16)

Recidivism among murderers does occasionally happen. But it happens less frequently than most people believe; the media rarely distinguish between a paroled murderer who murders again and other murderers who have a previous criminal record but not for homicide.

There is no way to predict which convicted murderers will kill again. Repeat murders could be prevented only by executing all those convicted of criminal homicide. Such a policy is too inhumane and brutal to be taken seriously. Society would never tolerate dozens of executions daily, yet nothing less would suffice. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.



--------------------------------------------------------------------------------

Unfairness

Constitutional due process as well as elementary justice require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 99 percent of all executions have been for this crime), there has been substantial evidence to show that courts have been arbitrary, racially biased, and unfair in the way in which they have sentenced some persons to prison but others to death.
Racial discrimination was one of the grounds on which the Supreme Court relied in Furman in ruling the death penalty unconstitutional. Half a century ago, Gunnar Myrdal, in his classic American Dilemma (1944), reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." Statistics confirm this discrimination, only it is not confined to the South. Between 1930 and 1990, 4,016 persons were executed in the United States. Of these, 2,129 (or 53 percent) were black. For the crime of murder, 3,343 were executed; 1,693 (or 51 percent) were black.(17) During these years African-Americans were about 12 per cent of the nation's population.

The nation's death rows have always had a disproportionately large population of African-Americans, relative to their fraction of the total population. Over the past century, black offenders, as compared with white, were often executed for crimes less often receiving the death penalty, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 (or 90 percent) were black.) A higher percentage of the blacks who were executed were juveniles; and blacks were more often executed than were whites without having their conviction reviewed by any higher court.(18)

In recent years, it has been widely believed that such flagrant discrimination is a thing of the past. Since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black(19) -- a disproportionately large fraction given the black/white ratio of the total population, but not so obviously unfair if judged by the fact that roughly 50 percent of all those arrested for murder were also black.(20) Nevertheless, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

An exhaustive statistical study of racial discrimination in capital cases in Georgia, for example, showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims."(21) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and the Court did not dispute the statistical evidence. The Court did hold, however, that the evidence failed to show that there was "a constitutionally significant risk of racial bias...." . (481 U.S. 279)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded: "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process...." .

These results cannot be explained away by relevant non-racial factors (such as prior criminal record or type of crime), and they lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white is treated much more severely than the killing of a black. Of the 168 persons executed between January 1977 and April 1992, only 29 had been convicted of the killing of a non-white, and only one of these 29 was himself white.(23) Where the death penalty is involved, our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Both sex and socio-economic class are also factors that enter into determining who receives a death sentence and who is executed. During the 1980s and aerially 1990s, only about I percent of all those on death row were women,(24) even though women commit about 15 percent of all criminal homicides.(25) A third or more of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse.(26) Since 1930, only 33 women (12 of them black) have been executed in the United States.(27)

Discrimination against the poor (and in our society racial minorities are disproportionately poor) is also well established. "Approximately ninety percent of those on death row could not afford to hire a lawyer when they were tried."(28) A defendant's poverty, lack of firm social roots in the community, inadequate legal representation at trial or on appeal--all these have been common factors among death-row populations. As Justice William O. Douglas noted in Furman, "One searches our chronicles in vain for the execution of any member of the affluent strata in this society." (408 U.S. 238)

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination."(29)

Justice John Marshall Harlan, writing for the Court, noted: "...the history of capital punishment for homicides...reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die.... Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history.... To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appears to be tasks which are beyond present human ability." (McGautha v. California, 402 U.S . 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards. They never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce."(30)

Even if these statutes were to succeed in guiding the jury's choice of sentence, a vast reservoir of unfettered discretion remains: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilt y plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, the final decision by the governor on clemency.

Discretion in the criminal-justice system is unavoidable. The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope. Discretion, whether authorized by statutes or by t heir silence, has been the main vehicle to this end. But when discretion is used, as it always has been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities, and the despised, then discretion becomes injustice.

Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.



--------------------------------------------------------------------------------


Inevitability of Error
Unlike all other criminal punishments, the death penalty is uniquely irrevocable. Speaking to the French Chamber of Deputies in 1830, years after the excesses of the French Revolution, which he had witnessed, the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."(31) Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would also insist that there is little likelihood of the innocent being executed. Yet a large body of evidence shows that innocent people are often convicted of crimes, including capital crimes and that some of them have been executed.
Since 1900, in this country, there have been on the average more than four cases per year in which an entirely innocent person was convicted of murder. Scores of these persons were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.(32) Consider this handful of representative cases:


In 1975, only a year before the Supreme Court affirmed the constitutionality of capital punishment, two African-American men in Florida, Freddie Pitts and Wilbert Lee, were released from prison after twelve years awaiting execution for the murder of two white men. Their convictions were the result of coerced confessions, erroneous testimony of an alleged eyewitness, and incompetent defense counsel. Though a white man eventually admitted his guilt, a nine-year legal battle was required before the governor would grant Pitts and Lee a pardon.(33) Had their execution not been stayed while the constitutional status of the death penalty was argued in the courts, these two innocent men probably would not be alive today.

Just months after Pitts and Lee were released, authorities in New Mexico were forced to admit they had sentenced to death four white men -- motorcyclists from Los Angeles -- who were innocent. The accused offered a documented alibi at their trial, but the prosecution dismissed it as an elaborate ruse. The jury's verdict was based mainly on what was later revealed to be perjured testimony (encouraged by the police) from an alleged eyewitness. Thanks to persistent investigation by newspaper reporters and the confession of the real killer, the error was exposed and the defendants were released after eighteen months on death row.(34)

In Georgia in 1975, Earl Charles was convicted of murder and sentenced to death. A surviving victim of the crime erroneously identified Charles as the gunman; her testimony was supported by a jail-house informant who claimed he had heard Charles confess . Incontrovertible alibi evidence, showing that Charles was in Florida at the very time of the crime, eventually established his innocence -- but not until he had spent more than three years under death sentence. His release was owing largely to his mother's unflagging efforts.(35)

In 1989, Texas authorities decided not to retry Randall Dale Adams after the appellate court reversed his conviction for murder. Adams had spent more than three years on death row for the murder of a Dallas police officer. He was convicted on the perjured testimony of a 16-year-old youth who was the real killer. Adams's plight was vividly presented in the 1988 docudrama, The Thin Blue Line, which convincingly told the true story of the crime and exposed the errors that resulted in his conviction.(36)

Another case in Texas from the 1980s tells an even more sordid story. In 1980 a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 15-year-old white schoolgirl. Interrogated by the police, they were told, " One of you two is going to hang for this." Looking at Brandley, the officer said, "Since you're the nigger, you're elected." In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986 Centurion Ministries -- a volunteer group devoted to freeing wrongly convicted prisoners -- came to Brandley's aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990.(37)

Each of the five stories told above has a reassuring ending: The innocent prisoner is saved from execution and is released. But when prisoners are executed, no legal forum exists in which unanswered questions about their guilt can be resolved. In May 1992, Roger Keith Coleman was executed in Virginia despite widely publicized doubts surrounding his guilt and evidence that pointed to another person as the murderer -- evidence that was never submitted at his trial. Not until late in the appeal process did anyone take seriously the possibility that the state was about to kill an innocent man, and then efforts to delay or nullify his execution failed. Was Coleman really innocent? At the time of his execution, his case was marked with many of the features found in other cases where the defendant was eventually cleared. Were Coleman still in prison, his friends and attorneys would have a strong incentive to resolve these questions. But with Coleman dead, further inquiry into the facts of the crime for which h e was convicted is unlikely.
Overzealous prosecution, mistaken or perjured testimony, faulty police work, coerced confessions, the defendant's previous criminal record, inept defense counsel, seemingly conclusive circumstantial evidence, community pressure for a conviction -- such factors help explain why the judicial system cannot guarantee that justice will never miscarry. And when it does miscarry, volunteers outside the criminal justice system -- newspaper reporters, for example -- and not the police or prosecutors are the ones who rectify the errors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially as there are no strong counterbalancing factors in favor of the death penalty.



--------------------------------------------------------------------------------


Barbarity
The traditional mode of execution, still available in a few states, is hanging. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.
Two states, Idaho and Utah, still authorize the firing squad. The prisoner is strapped into a chair, and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Electrocution has been the most widely used form of execution in this country in this century. The condemned prisoner is led--or dragged--into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness.

In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows: "At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted ... from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

"The electrode on the left leg was refastened.... Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request ... was denied.

"At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes."(38) Afterwards, officials were embarrassed by what one observer called the "barbaric ritual." The prison spokesman remarked, "This was supposed to be a very clean manner of administering death."(39)

An attempt to improve on electrocution was the gas chamber. The prisoner is strapped into a chair, a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form lethal gas. Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U. S. Supreme Court Justice John Paul Stevens:

"When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then look several more quick gulps of the fumes.

"At this point Don's body started convulsing violently....His face and body fumed a deep red and the veins in his temple and neck began to bulge until I thought they might explode.

"After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

"After several more manuals, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

"Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

"Don Harding took ten minutes and thirty one seconds to die." (Gomez v. U.S. District Court, 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by nearly two dozen states, is lethal injection, first used in Texas in 1982. It is easy to overstate the humaneness and efficacy of this method. There is no way of knowing that it is really painless. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence ... that execution by lethal injection poses a serious risk of cruel, protracted death.... Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." (Chaney v. Heckler, 718 F.2d 1174 [1983])

Nor does the execution always proceed smoothly as planned. In 1985 "the authorities repeatedly jabbed needles into ... Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser."(40) In 1988, during the execution of Raymond Landry, "a tube attached to a needle inside the inmate's right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses."(41)

Indeed, by its veneer of decency and by subtle analogy with life-saving medical practice, death by lethal injection makes killing as punishment more acceptable to the public. Even when it prevents the struggles of the condemned person and avoids maiming the body, it is no different from hanging or shooting as an expression of the absolute power of the state over the helpless individual.

Most people observing an execution are horrified and disgusted. "I was ashamed," writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. "I was an intruder, the only member of the public who had trespassed on [the condemned man's] private moment of anguish. In my face he could see the horror of his own death."(42) Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens -- however unsentimental they are about crime and criminals -- are opponents of capital punishment.

In some people, however, executions seem to appeal to strange, aberrant impulses and give an outlet to sadistic urges. Warden Lewis Lawes wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant, "I received more than seven hundred applications for the position, many of them offering cut-rate prices."(43)

Public executions were common in this country during the 19th century; one of the last was in 1936 in Kentucky, when 20,000 people gathered to watch a young African-American male hanged.(44) Delight in brutality, pain, violence, and death may always be with us. But surely we must conclude that it is best for the law not to encourage these impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago, the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishments (1764), asserted: "The death penalty cannot be useful, because of the example of barbarity it gives men." True, and even if the death penalty were a "useful" deterrent, it would still be an "example of barbarity." No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."(45)



--------------------------------------------------------------------------------


Retribution
Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim will not bear scrutiny. All punishment by its nature is retributive, not only the death penalty. Whatever legitimacy, therefore, is to be found in punishment as just retribution can in principle be satisfied without recourse to executions.
It is also obvious that the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug kingpins). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life.

As Camus wrote, "For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life."(46)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their deserts--"making the punishment fit the crime."

If this principle is understood to require that punishments are unjust unless they are like the crime itself, then the principle is unacceptable. It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishment s on offenders. It would require us to betray traitors and kill multiple murderers again and again, punishments impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murderers.

If, however, the principle of just deserts is understood to require that the severity of punishments must be proportional to the gravity of the crime, and that murder being the gravest crime deserves the severest punishment, then the principle is no doubt sound. But it does not compel support for the death penalty. What it does require is that crimes other than murder be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and punished with severity appropriate to their culpability and the harm they have caused to the innocent. But severity of punishment has its limits -- imposed both by justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Some whose loved one was a murder victim believe that they cannot rest until the murderer is executed. But the feeling is by no means universal. Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the tacking of a human life. Morality is never upheld by a legalized murder."(47)

Kerry Kennedy, daughter of the slain Senator Robert Kennedy, has written: "I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.... But even as a child one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, 'Please, God. Please don't take his life, too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family -- another set of parents, children, brothers, and sisters thrown into grief."(48)



--------------------------------------------------------------------------------


Financial Costs
It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, as though life imprisonment were obviously more expensive than executions. If one takes into account all the relevant costs, the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment."(49)
A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs - including the time of judges, prosecutors,public defenders, and court reporters, and the high costs of briefs -- are all borne by the taxpayer.

A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison.(50)

In Maryland, a comparison of capital trial costs with and without the death penalty for the years 1979-1984 concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence."(51) In 1988 and 1989 th e Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of "more than $ 11 million."(52) Florida, with one of the nation's largest death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence.(53)

The only way to make the death penalty a "better buy" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protections against the grossest miscarriages of justice. The savings in dollar s would be at the cost of justice: In nearly half of the death-penalty cases given review under federal habeas corpus, the conviction is overturned.(54)



--------------------------------------------------------------------------------


Public Opinion
The media commonly report that the American public overwhelmingly supports the death penalty. More careful analysis of public attitudes, however, reveals that most Americans would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In California, for example, a Field Institute survey showed that in 1990,82 percent approved in principle of the death penalty. But when asked to choose between the death penalty and life imprisonment plus restitution, only a small minority--26 percent--continued to favor executions.(53)
A comparable change in attitude toward the death penally has been verified in many other states and contradicted in none.



--------------------------------------------------------------------------------


Abolition Trends
The death penalty in the United States needs to be put into international perspective. In 1962, it was reported to the Council of Europe that "the facts clearly show that the death penalty is regarded in Europe as something of an anachronism...."(56)
Today, 28 European countries have abolished the death penalty either in law or in practice. In Great Britain, it was abolished (except for treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that, throughout the world, it is desirable to "progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment."(57)

Conspicuous by their indifference to these recommendations are nations generally known for their disregard for the human rights of their citizens: China, Iraq, Iran, South Africa, and the former Soviet Union.(58) Americans ought to be embarrassed to find themselves linked with the governments of such nations in retaining execution as a method of crime control.

Opposition to the death penalty in the United States is widespread and diverse. Catholic, Jewish, and Protestant religious groups, national organizations representing people of color, and public-interest law groups are among the more than fifty national organizations that constitute the National Coalition to Abolish the Death Penalty.

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice. The unmistakable worldwide trend is toward the complete abolition of capital punishment.



--------------------------------------------------------------------------------


For Further Information & Reference
Additional copies of this pamphlet, as well as resource materials such as newsletters, books, legal and legislative information, death-row census, reprinted articles, bibliographies, and referrals to other national and state-wide anti-death penalty groups may be obtained from the Capital Punishment Project, American Civil Liberties Union, 122 Maryland Avenue N.E., Washington, D.C., 20002. Diann Y. Rust-Tierney, Esq., is the project's director. The National Coalition to Abolish the Death Penalty, which coordinates the work of a wide variety of organizations opposed to capital punishment, is located at 1325 G St. N.W. Lower Level B, Washington, D.C., 20005.
No one volume on the death penalty currently serves as an up-to-date source book on all aspects of the subject. The Death Penalty in America, 3rd ed., ed. Hugo Adam Bedau, Oxford University Press, 1982, is still useful, and a new edition is in preparation. Many other recent volumes contain valuable information and argument, including: Welsh S. White, The Death Penalty in the Nineties, University of Michigan Press,1991; Samuel R. Gross and Robert Mauro, Death and Discrimination, Northeastern University Press, 1989; Michael L. Radelet, ed., Facing the Death Penalty, Temple University Press, 1989; Kenneth C. Haas and James A. Inciardi, eds., Challenging Capital Punishment, Sage Publications, 1988; United States of America -- The Death Penalty, Amnesty International Publications, 1987; Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda, Cambridge University Press, 1986; William J. Bowers, Legal Homicide: Death as Punishment in America, 1864-1982, Northeastern University Press , 1984; Charles L. Black, Jr., Capital Punishment, 2nd ed., W. W. Norton, 1981. The wealth of scholarly literature up through 1988 can be traced with the help of Capital Punishment in America: An Annotated Bibliography, Garland Publishing, 1988, edited by Michael L. Radelet and Margaret Vandiver.

Four more specialized volumes deserve mention as well: Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases, Northeastern University Press, 1992; Robert M. Bohm, ed., The Death Penalty in America: Current Research. Anderson Publishing Co., 1991: Victor T. Streib, Death Penalty for Juveniles, Indiana University Press, 1987; and Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865 , Oxford University Press, 1989.

Several scholarly and legal journals have devoted whole issues to various legal, sociological, and historical aspects of the problem of the death penalty, notably Dickinson Law Review, vol. 95, no. 4, Summer 1991; New York University Review of Law & Social Change, vol. 18, nos. 2 and 3, 1990-1991; Albany Law Review, vol. 54, nos. 3/4, 1990; Loyola of Los Angeles Law Review, vol. 23, no. 1, November 1989; Journal of Contemporary Criminal Justice, vol. 5, no. 4, December 1989; Law and Human Behavior, vol. 8, nos. 1/2, June 1984; U.C. Davis Law Review, vol. 18, no. 4, summer 1985; Journal of Criminal Law and Criminology. vol. 74, no. 3, fall 1983.

Among the recent U.S. government publications containing information of general interest are: "The Federal Death Penalty Act of 1989," Report of the Senate Committee on the Judiciary, 101st Congress, 1st Session, October 1989; "Death Penalty," Hearings Before Committee on the Judiciary, U.S. Senate, 101st Congress, 1st Session, September-October 1989; "Establishing Constitutional Procedures for the Imposition of Capital Punishment," Report of the Senate Committee on the Judiciary, 99th Congress, 2d Session, April 1986; "Capital Punishment," Hearings Before Subcommittee on Criminal Justice, U.S. House of Representatives, 99th Congress, 1st and 2d Sessions, November 1985-July 1986; "Death Penalty Legislation," hearing Before the Committee on the Judiciary, U.S. Senate, 99th Congress, 1st Session, September 1985. For earlier federal government publications, see the bibliography by Radelet and Vandiver, pp. 219-20.

Statistical information on death sentences and executions since 1930 may be obtained in the U.S. Bureau of Justice Statistics Bulletin, Capital Punishment, an annual report appearing under various titles since the 1950s. The NAACP Legal Defense and Educational Fund publishes "Death Row, U.S.A.," issued since the 1970s several times a year; it reports current demographic information on executions and the death row population.



--------------------------------------------------------------------------------


Notes
See U.S. Dept. Justice, Capital Punishment, annually, 1980 et seq.

See Uniform Crime Reports, annually, 1980 et seq.

See Uniform Crime Reports.

Uniform Crime Reports, annually, 1980-1989.

Bowers and Pierce, "Deterrence or Brutalization," in Crime & Delinquency (1980).

U.S. Dept. Justice, Capital Punishment, 1972-1990; Uniform Crime Reports, annually, 1972-1990; and NAACP Legal Defense and Educational Fund, "Death Row, USA," Spring 1992.

Bailey and Peterson, in Criminology (1987), p. 22.

Sourcebook of Criminal Justice Statistics -- 1990.

Bureau of Justice Statistics, Prisons and Prisoners in the United States (1992), p. 1.

Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982), p. 167

Ehrlich, in American Economic Review (1974); Phillips, in American Journal of Sociology (1980); and Layson, in Southern Economic Journal (1985)

Lempert, in Crime & Delinquency (1983); Peterson and Bailey in Chambliss, ed., Criminal Law in Action, 2nd ed. (1984); Bowers, in Hasse and Inciardi, eds., Challenging Capital Punishment (1988); Peterson and Cello, in Social Forces (1988); and Fox and Radelet, in Loyola of Los Angeles Law Review (1989).

Blumstein, Cohen, and Nagin, eds., Deterrence and Incapacitation (1975), p. 358.

West, Solomon, and Diamond, in Bedau and Pierce, eds., Capital Punishment in the United States (1976).

Bedau, "Recidivism, Parole, and Deterrence," in Bedau, ed., Death Penalty in America, 3rd ed.

Marquart and Sorensen, in Loyola of Los Angeles Law Review (1989).

U.S. Bureau of Justice Statistics, "Capital Punishment," 1977, and NAACP LDF, "Death Row, USA," Spring 1992.

Bowers, Legal Homicide (1984); Streib, Death Penalty for Juveniles (1987).

"Death Row, USA," 1976 et seq.

Uniform Crime Reports, 1972-1990.

Baldus, Woodworth, and Pulaski, Equal Justice and The Death Penalty (1990), p. 401.

U.S. General Accounting Office, "Death Penalty Sentencing" (1990), pp.5, 6.

"Death Row, USA," Spring 1992; and Sourcebook of Criminal Justice Statistics -- 1990.

U.S. Bureau of Justice Statistics, "Capital Punishment," 1980-1990.

Uniform Crime Reports, 1980-1990.

Memorandum, National Coalition to Abolish the Death Penalty, January 1991.

U.S. Bureau of Justice Statistics, "Capital Punishment," 1979; NAACP LDF, "Death Row, USA," Spring 1992.

Tabak, in Loyola of Los Angeles Law Review (1989).

Gross and Mauro, Death and Discrimination (1989), p. 224.

Black, Capital Punishment. The Inevitability of Caprice and Mistake. 2nd ed. (1982).

Lucas Recueil des debats ... (1831) pt. II, p. 32.

Radelet, Bedau, and Putnam, In Spite of Innocence (1992); Bedau and Radelet, Miscarriages of Justice in Potentially Capital Cases, Stanford Law Review (1987).

Miller, Invitation to a Lynching (1975); also The New York Times, Sept 10, 1975, p.1.

"Capital Punishment" Senate Hearings (1981) pp. 713-20

Atlanta Weekly, May 30, 1982.

Adams, Hoffer, and Hoffer, Adams v. Texas (1991).

Davies, White Lies (1991).

Glass v. Louisiana, 471 U.S. 1080 (1985).

Boston Globe, April 24, 1983, p. 24.

The New York Times, December 14, 1988, p. A29.

Ibid.

Los Angeles Times, March 24, 1985, Pt IV, p. 5.

Lawes, Life and Death in Sing Sing (1928).

Teeters, in Journal of the Lancaster County Historical Society (1960).

Boston Globe, August 16, 1976, p. 17

Camus, "Reflections on the Guillotine," in Resistance, Rebellion and Death (1960).

Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981.

Foreword to Gray and Stanley, A Punishment in Search of A Crime (1989).

Spangenberg and Walsh, in Loyola of Los Angeles Law Review (1989), p. 47

N. Y. State Defenders Assn., Capital Losses (1982).

U S. Govt. Accounting Office, Limited Data Available on Costs of Death Sentences (1989), p. 50.

Cited in Spangenberg and Walsh, note 49.

Miami Herald, July 10, 1988.

New York Times, Sept. 22, 1989

New York Times, May 28, 1990; and Fox, Radelet, and Bonsteel, in N.Y.U. Review of Law and Social Change (1990-91).

Ancel, The Death Penalty in European Countries (1962), p 55.

UN, Ecosoc, Official Records 58th Sess. (1971), Supl. 1, p.36.

Hood, The Death Penalty: A World-Wide Perspective (1989); Amnesty International, When The State Kills... (1989).


--------------------------------------------------------------------------------

Revised July 1992.
ACLU Free Reading Room
A publications and information resource of the
American Civil Liberties Union National Office

gopher://aclu.org:6601
ftp://aclu.org/aclu
infoaclu@aclu.org

"Eternal vigilance is the price of liberty"



--------------------------------------------------------------------------------

HTML Publishing by Michael Wood
mwood@dnai.com

Florida prisoner charged in Toledo slaying, robbery

A man who was extradited to Ohio from a Florida prison on charges of aggravated murder and aggravated robbery was arraigned in Lucas County Common Pleas Court yesterday.

Jerry Hinds, 44, is charged in the murder of Jessie Coleman, 74, who was found dead in his Buffalo Street apartment March 7, 2005. He had been beaten with a blunt object and stabbed in the neck.

Yesterday, Hinds pleaded not guilty to the charges. Judge James Bates scheduled his trial for Sept. 2.

Hinds, who had been in a Florida prison on an unrelated charge, is in the Lucas County jail in lieu of a $100,000 bond.

Another defendant, Rodney Bunce, was sentenced last month to 28 years to life in prison after being convicted by a jury of his role in the killing.

Boy, 12, takes plea deal in tot's beating death

Prosecutors say Shaloh Joseph was beaten to death in January by a 12-year-old boy who was baby-sitting her.

BY TODD WRIGHT twright@MiamiHerald.com

A 12-year-old Broward County boy accused of beating his toddler cousin to death with a bat was sentenced to 18 months in a high-risk juvenile treatment facility Wednesday after pleading no contest to second-degree murder charges.
The plea deal came just moments after the boy was found competent to stand trial.

After being released from the program, the boy will return home to be with his mother, Guerla Joseph, but is not allowed to have unsupervised contact with children under the age of 10.

The boy could have been sentenced to life in prison if he was convicted as an adult.

The boy, whom The Miami Herald will not name because of his age, has spent the past several months at a treatment facility in Tampa after being found incompetent to stand trial in January. Doctors then said he was too immature to understand the legal system.

On Wednesday, the soft-spoken boy said, ''Yes,'' to Judge Charles Kaplan when the judge asked if he understood what was going on.

''He got a second chance on life today,'' said Sandra Perlman, one of the boy's appointed public defenders. ``We are looking for a happily ever after story.''

That story got off to a tragic beginning.

Lauderhill police detectives said the boy, who was baby-sitting 17-month-old Shaloh Joseph at the time, confessed to beating her at the family's Lauderhill home Jan. 4 because she was crying while he was trying to watch television. He was alone with the girl and his 10-year-old brother, according to police.

Guerla Joseph, who has been adamant about her son's innocence throughout the case and had first objected to the plea deal, declined to comment after court Wednesday.

Her son could be returned home even earlier than the expected 18 months, said Chief Assistant Public Defender Gordon Weekes Jr. His stay in the Tampa treatment facility will depend on his continued progress, he said.

Doctors testified Wednesday that the boy had made tremendous progress sine their last psychological evaluations in January, even understanding complex legal issues like plea deals and different court proceedings.

The court was right in child rape case

Tuesday, July 08, 2008
DANIEL LEDDY
STATEN ISLAND, N.Y. -- On March 4, 1991, Mark Dean Schwab was released from prison after serving three years of an eight-year sentence for the aggravated rape of a 13- year-old boy. A few weeks later, a photo of 11-year-old Juny Rios-Martinez, who had won a kit flying contest, appeared in "Florida Today."

After seeing Juny's photo, Schwab impersonated a news reporter to gain access to the boy. On April 18, 1991, the brazen predator called Juny's school and, claiming to be his father, arranged for the child to meet him at a ball field.

After witnesses saw Juny getting into a U-haul truck, he disappeared. Five days later, Schwab lead police to the child's nude body stuffed inside a footlocker.

Last Tuesday, with death penalty opponents protesting outside, the Florida executed Schwab for kidnapping, rape, and murder. His was a crime so horrific, committed under circumstances so infuriating, that supporters of capital punishment should slap his mug shot on a poster and defy anybody to explain how justice could possibly have been served by anything less than his death.

Schwab's execution came only days after the U.S. Supreme Court struck down as unconstitutional a Louisiana law that authorized the death penalty for child rape even if the victim survives the attack. The 5-4 ruling in Kennedy v. Louisiana produced outcries of unwarranted judicial activism and charges that the court is insensitive to the depravity of child rape.

Not surprisingly, the presumptive presidential nominees of both major parties issued statements in reaction to the decision.

Politics aside, the Supreme Court got it right here, and neither Republican John McCain nor Democrat Barack Obama distinguished himself by what he had to say about the court's ruling.

The death penalty is not a deterrent to murder or any other exceptionally serious crime. This is because would-be perpetrators simply don't act under the assumption that they are likely to be caught.

Moreover, the prospect of life imprisonment without parole is such a devastating punishment that, if deterrence were really possible, it would certainly provide it.

The real issue here is justice, which is precisely why the process is referred to as the criminal justice system. It is not vindictiveness, revenge, or political appeasement. Neither is it mercy which, if dispensed inappropriately, undermines the mandate that justice be done.

Schwab's execution was not only appropriate but necessary if justice was to be served. By cold, calculated, premeditated acts, he took the life of a child. So, in a cold, calculated, premeditated response, the people of Florida took his in return.

DECISIVE ELEMENT

This decisive element -- the death of the victim -- was absent in the Kennedy case. While not pivotal to the court's decision, it is worth noting that the child whom Kennedy raped made a complete recovery. For the precise reason that executing Schwab was just, taking Kennedy's life would have been unjust.

Not only did the court reach the right result, but it got there without overstepping the limits of its legitimate power. In considering whether the death penalty constitutes cruel and unusual punishment where a defendant's victim survives, the court was required to consider "the evolving standards of decency that mark the progress of a maturing society."

A second requirement is that punishment be "graduated and proportioned to the offense." Applying these principles in two fairly recent cases, the court barred the execution of juveniles and mentally retarded persons.

The court noted that in today's America, only six states authorize the death penalty for child rape. In finding a social consensus against such executions, the court also pointed out that no person has been put to death in the United States for any non-homicide crime in 44 years.

The court correctly concluded that while child rape inflicts "devastating" harm, it cannot be fairly equated to premeditated murder in terms of either its depravity or consequences to the victim.

Blasting the court's decision, McCain said that it was "profoundly disturbing" that any judge in America would fail to see child rape as "the most heinous of crimes" fully deserving of the death penalty.

Obama also took issue with the ruling, stating that "a potentially applicable" death sentence for the rape of a "small child" committed under "narrow, limited, well-defined circumstances" should not be deemed unconstitutional.

McCain's reaction is nonsensical on its face because it not only equates child rape with premeditated murder, but asserts that it is the more serious of the two.

Obama's statement, on the other hand, is so full of qualifiers and imprecise terms that, when considered against his liberal politics, it fuels suspicion that he actually supports the court's decision but is fearful of handing McCain a campaign issue.

The Supreme Court can be justifiably criticized for unwarranted judicial activism in several cases with far-reaching consequences. It's decision in Kennedy v. Louisiana, however, isn't one of them.

Daniel Leddy's On The Law column appears each Tuesday on the Advance Op-Ed Page. His e-mail address is JudgeLeddy@si.rr.com.

Mentally ill need treatment, not jail

By Darlene Linville, Guest Columnist

Published Sunday, July 6, 2008 5:17 PM


--------------------------------------------------------------------------------

"Treatment not jail'' is the battle cry for Partners in Crisis, a statewide advocacy organization whose members support prevention and early treatment programs designed to keep people with mental illness out of the criminal justice system and get them into treatment. Each year as many as 125,000 people with mental illnesses requiring immediate treatment are arrested and booked into Florida jails.

The National Alliance on Mental Illness in Florida theoretically chose the same battle cry, "treatment not jail," when members statewide chose initiatives for 2007, setting as No. 1 to advocate for more funding for the mental health care system, and No. 2, to work toward improving programs to keep people with mental illness from being involved with the criminal justice system. Florida's jails and prisons house more than 10 times the number of people with mental illness as the number being treated in mental health facilities.

NAMI Hernando shouted that same battle cry in 2007 with a community education seminar titled "Taking Action … Let the Dialogue Begin," at which Judge Ginger Lerner-Wren spoke about her involvement as presiding judge in the establishment of the nation's first Mental Health Court in Broward County. She talked long and hard about how the Mental Health Court in her county saved taxpayer dollars while preserving the human dignity of those living with a treatable mental illness. Treatment not jail!

Hernando County was listening. A task force was formed and with the help of Karen Nicolai, clerk of court, Jean Rags, director of Health and Human Services and Kathleen Lonergan, coordinator for the Drug Court, that same battle cry was soon picked up by others in our county. Many people gathered to discuss the need and the possibilities; from the judges to the jail warden to the State Attorney's Office, to the hospital administrators, all were in agreement: A Mental Health Court was desperately needed.

Too many people with treatable mental illnesses were spending time in a very expensive jail when their crimes were not violent, but rather were directly related to nontreatment of their mental illness. The 2006 Hernando County health needs assessment shows that Baker Act initiations are substantially higher in Hernando County than Florida's average, and have been increasing since 2000.

I am amazed at how quickly our county officials, judges, attorneys and jail personnel came together to make it all happen. The mental health court has begun hearing cases, in Judge Richard Tombrink's courtroom.

Everyone agrees a mental health court is not the final answer, but only a beginning. "Treatment not jail" includes finding the treatment necessary to keep people on essential medication and involved with adequate psychiatric care. The Harbor Behavioral Health Care Institute will do all that it can, but in these troubled times of reduced spending for necessary programs it can only do what current funding levels allow.

"Continuing the Dialogue … Decriminalizing Mental Illness" was the theme for NAMI's most recent community education seminar on May 31 at Nativity Lutheran Church. Approximately 70 people heard a panel of experts discuss the why's and how's of a mental health court. County Commissioner Chris Kingsley read the county proclamation for Mental Health Month.

Sheriff Richard Nugent and several members of the Hernando County Sheriff's Office attended the event, at which the recently graduated members of the Crisis Intervention Team were recognized. These officers form a unique group, a group that has learned through special training to recognize mental health issues and the techniques necessary to de-escalate potentially explosive situations, thus preserving human dignity and community safety. We now have 18 trained members of the Crisis Intervention Team. Once again, "treatment not jail".

The first full week of October will find NAMI on a national level observing Mental Illness Awareness Week. NAMI Hernando will be continuing the dialogue and shouting the battle cry "treatment not jail." Watch for more information in the months ahead.

Thank you for listening, Hernando County. We look forward to continuing this partnership and our fight for adequate care for the mentally ill.

Darlene Linville is president of the board of directors of NAMI Hernando. Guest columnists write their own views on subjects they choose, which do not necessarily reflect the opinions of this newspaper.

Floridians feel squeeze of state's $66 billion budget

John Kennedy and Aaron Deslatte

Tallahassee Bureau

July 6, 2008

TALLAHASSEE

Florida's prison system is shedding nearly 400 probation officers, prison teachers and chaplains.

The Department of Community Affairs, which polices growth, is laying off planners, shuttering its office in the Florida Keys and predicting it will take longer for local governments to get needed approvals of redevelopment plans.

Hundreds of other government workers -- from greyhound-track judges to college professors -- are headed to the unemployment line.

And the Agency for Persons with Disabilities is trimming funding for everything from transportation for disabled Floridians to in-home-care speech therapy. About 35,000 people with cerebral palsy, autism and mental retardation will see Medicaid service cuts totaling $43.5 million.

These are just some of the consequences of the bare-bones $66 billion state budget that took effect July 1. And almost everyone thinks things will get worse before they get better.

"I've never seen budget cuts this deep, or this mean," said John Askew, president of Sunrise ARC, which provides services to 250 developmentally disabled clients, mostly in Lake County. A cut of $400,000 from his $4.1 million budget, he said, already has forced the closure of one of the organization's six group homes and an adult training center.

"This really is causing a lot of disruption and worry for the families of our clients," Askew added. "And I'm afraid this is not the end."


Forecast to consider deficit

State officials agree.

Even though the new budget is $6 billion below the one that Gov. Charlie Crist signed into law in 2007, revenue continues to erode. State tax collections fell a combined $263.9 million below anticipated levels in March, April and May. June figures are expected to be about $100 million short as the state sinks into recession, economists said.

"We earlier had a lot of optimism, but that's waning," said Amy Baker, coordinator for the Legislature's Office of Economic and Demographic Research, one of the state's financial forecasters.

Baker and other state economists plan to meet early next month to revise this year's forecast and could declare that a deficit is looming. Florida's Constitution prohibits the state from running on red ink, so Crist would be forced to take action.

"If need be, we will do that," Crist said.


Reserves here and there

Seeking to avoid a grim, budget-cutting session while they're running for re-election, legislators earlier this year gave Crist authority to use half of the state's budget-stabilization fund -- or about $700 million -- to patch holes in the 2008-09 spending plan.

If that money is depleted, Crist could then tap as much as $1 billion from the Lawton Chiles Endowment Fund, usually used to finance health-care programs, to bring the budget back into balance.

But lawmakers eventually may decide to avoid draining reserves -- which might be needed next year -- and simply cut spending. Last year, the Legislature slashed $1.5 billion in two rounds of budget-cutting. A special session after this fall's elections could be called to further reduce this year's version.

"We're figuring a special session to cut more is probable," Askew said.


Not vital? Not funded

Across Florida, budget woes abound, compounded in many communities by property-tax cuts resulting from Amendment 1, approved by voters in January.

Cities and counties are scaling back tree trimming, pothole repairs and other projects deemed not vital. Fourth of July fireworks in some communities were kept alive only through private contributions.

"People are looking at new and creative ways to stretch dollars," said Cragin Mosteller, spokeswoman for the Florida Association of Counties.

The biggest hit will be felt in classrooms this fall. Last month, a state Department of Education survey found that Florida's 67 school districts are considering laying off more than 3,600 teachers and staff -- including more than 1,000 teachers just in Orange, Seminole and Volusia counties.


Effects still rippling

State Sen. Mike Fasano, a New Port Richey Republican who oversees the transportation and economic-development areas of the budget, said the reaction from local communities so far has been muted -- mainly because the combined wallop of reduced state- and local-government spending will take several months to trickle down.

He has heard recently from some teachers and probation officers getting laid off and has spoken with a brother and sister who have spina bifida and are losing their in-home services.

"There's definitely going to be some tightness, and people will feel some pain," he said. "But I think it'll happen later rather than sooner."




John Kennedy can be reached at jkennedy@orlandosentinel.com. Aaron Deslatte can be reached at adeslatte@orlandosentinel.com. Both also can be reached at 850-222-5564.

Healing

"The death penalty is about revenge and hate, and revenge and hate is why my daughter and those 167 other people are dead today."

Bud Welch, father of Julie Marie Welch,
victim in the Oklahoma City bombing

"I have come to believe that the death penalty is not what will help me heal. Responding to one killing with another killing does not honor my daughter, nor does it help create the kind of society I want to live in, where human life and human rights are valued. I know that an execution creates another grieving family, and causing pain to another family does not lessen my own pain."

MVFHR board member, Vicki Schieber, testifying to the Subcommittee on the Constitution,
Civil Rights and Property Rights; Committee on the Judiciary; US Senate, February 2006.

Catholics gather in prayer against the death penalty

ORLANDO Over the prayerful protests of Florida’s bishops and many Catholics in their flocks, Gov. Charlie Crist declined to halt the July 1 execution of Mark Dean Schwab — the first use of the state’s death penalty in more than a year and a half.

Schwab, who was on death row for the April 18, 1991, rape and murder of 11–year–old Junny Rios–Martinez of Cocoa, died by lethal injection at 6:15 p.m. in the state’s death chamber in Starke, about 40 miles southwest of Jacksonville and near the Florida State Prison in Raiford. He was 39.

In a June 25 letter, Florida’s nine bishops called on the governor to “set a new standard of respect for life” by stopping the execution. They said they were praying for the victim, and knew they are unable to fully grasp the pain experienced by his family. They lamented, though, that taking the life of another who has killed perpetuates violence as a solution.

JANET SHELTON FC
Jackie and Shawn Cosgrove join dozens who prayed and lit candles at the time of the execution at St. Paul Parish in Tampa in the St. Petersburg Diocese.
Prayer vigils scheduled to coincide with the execution took place in parishes in the dioceses of Palm Beach, St. Petersburg and Venice. A 44–passenger busload of people from two Orlando Diocese parishes took a 90–mile ride to pray outside the building that houses the death chamber. Their prayers — according to interviews at the various vigil sites — were for an end to use of the death penalty, for the young murder victim and his family and friends, for the condemned man and his family and friends, for the governor, for those participating in the execution and for all the people of Florida.

“This execution and other executions are being done in our name. We need to take a stand and say ‘not in my name,’” said Barbara Richardson, a member of St. Ann Parish in West Palm Beach, who was among those praying the evening of July 1 with Palm Beach Bishop Gerald M. Barbarito outside the Cathedral of St. Ignatius Loyola in Palm Beach Gardens. “What the state is doing is wrong. There are other ways to protect society.”

The only sounds heard on the cathedral grounds were the slow continuous beats of a drum and cars passing by on busy Military Trail as the crowd of about 50 processed with rosaries in hand carrying a large black and white sign with the words “State–sponsored Killing is Wrong.”

In the Diocese of Venice, 15 people attended an execution–time prayer service at St. Thomas More Parish in Sarasota and, outside St. Joseph Parish in Bradenton about 20 people held up signs denouncing the execution and Gov. Crist.

“It is not the right of the state to take a life,” St. Joseph parishioner Esther Ricker said. “We need to convince people that this just isn’t right.”

BOB REDDY FC
Esther Ricker expresses her beliefs on the sign she carries while participating in a Deathwatch Vigil at St. Joseph Parish in Bradenton July 1. “We need to convince people that this just isn’t right.”
The busload of parishioners and others from Our Lady of Lourdes in Daytona Beach and Our Lady of Grace in Palm Bay brought what may have been the sole touch of anti–death–penalty sentiment to the crowd outside the death chamber building. According to news reports, they prayed aloud briefly, then stood in silence, keeping their distance from relatives of the murder victim, who cheered when they heard Schwab had died.

“We do not go to judge or condemn but to show compassion, support and mercy,” Nancy Sturm, Our Lady of Lourdes director of faith formation, said early that afternoon in Daytona Beach, as she and the others waited to board the bus. “There’s so much pain the world, prayer is powerful. The family of the young boy are in our hearts, we are there for them, it’s for healing.”

The two Orlando Diocese parishes have made it a custom to travel to Starke for executions. In the past, the bus trip has originated at Our Lady of Grace in Palm Bay, 95 miles south of Daytona Beach, and picked up Our Lady of Lourdes passengers on the way. This time, fuel prices prompted the Our Lady of Grace representatives to meet up with the bus by car.

Many on the bus, including Sturm, were veterans of the Starke trips. But longtime, active Our Lady of Lourdes parishioners Vivian and Gary Bowden were making the trek for the first time and admitted to being unsure of where they stood on the death penalty.

“We are on a journey between two places and feel the Lord has been speaking to us and wants us to experience this, to be there learning,” Bowden said.

According to the Catechism of the Catholic Church, assuming guilt is indisputable, the church does not exclude recourse to the death penalty “if this is the only possible way of effectively defending human lives against the unjust aggressor.” The U.S. Conference of Catholic Bishops has held for more than 25 years that such instances are rare to nonexistent in the nation, and in 2005 launched a campaign to end use of the death penalty “not only for what it does to those who are executed, but what it does to us as a society. We cannot teach respect for life by taking life.”

A series of polls over the years shows Catholics in general are coming around to their bishops’ point of view. Though a November 2004 Zogby International poll on the subject showed slightly more Catholics supported the death penalty than opposed it — 48 percent to 47 percent — the support was down from a previous high of 68 percent.

The last person to be executed in Florida was Angel Diaz in December 2006. Mistakes made during his execution resulted in a moratorium on executions in Florida until the state’s lethal injection procedures were reviewed. Following that review, Schwab was scheduled to die last November, but received a stay while the U.S. Supreme Court considered a Kentucky case challenging the constitutionality of lethal injection. The high courts ruling in April that lethal injections similar to Florida’s were not cruel and unusual punishment cleared the way for Schwab’s execution to be rescheduled.

ENDNOTE: Linda Reeves, Jennifer Surgent, Bob Reddy and Janet Shelton contributed to this story.

New Domestic Violence Law

By Associated Press
A bill that expands Florida's domestic violence laws to cover dating relationships is signed into law by Governor Charlie Crist.

The governor signed the Barwick-Ruschak Act during a ceremony at the Capitol.

The law is named after Tiffany Barwick and Michael Ruschak, two University of Central Florida students who were killed last year at a barbecue. Barwick's boyfriend, Andrew Allred, has pleaded guilty to both murders and awaits sentencing. He could face the death penalty.

Barwick reportedly tried to get help from law enforcement but was told there wasn't much they could do. She was told to file a police report and to surround herself with friends for protection.
She was killed before she had a chance to file a report.

The victim's families were at today's bill signing.

The new law will give law officers more latitude dealing with cases of dating violence. Officers will be able to make a warrantless arrest in such cases if there is probable cause.

The law will also provide assistance to victims of dating violence, including medical treatment and information about domestic violence centers.

Florida execution success portends more deaths

By RON WORD
Associated Press Writer


JACKSONVILLE, Fla. --Eighteen months after Florida botched its last execution, its new lethal injection procedures resulted in what appeared to be a smooth and peaceful death for child killer Mark Dean Schwab.

Although the new procedures may allow Florida's executions to begin ramping up, the lessons won't necessarily apply to other states - like Alabama, Ohio and Tennessee - that still face various legal challenges to their lethal injection methods.

Florida Gov. Charlie Crist has already indicated he plans to resume signing death warrants.

"I think we have 387, the last count that I saw, that remain on death row. A lot of people are waiting for justice to be done," Crist said Wednesday.

Peter Cannon, the state-paid attorney who represented Schwab, also predicted an increase.

"As for the future in Florida, yesterday's execution will undoubtedly lead to the signing of more death warrants. With 18 months' delay, many cases have worked their way through the system, resulting in many inmates becoming warrant-eligible," he said.

After the botched execution of Angel Diaz in December 2006, then-Gov. Jeb Bush appointed a commission to investigate. As a result, Florida corrections officials changed the state's death chamber protocols.

In a newly remodeled death chamber at Florida State Prison, the executioner was able to watch Schwab's face and his two arms on television cameras. A warden checked to ensure that Schwab was unconscious after the first chemical, sodium pentothal was injected. It took 12 minutes for Schwab to die, compared with 34 for Diaz. In the Diaz execution, the medical examiner determined that needles had punctured his veins, causing the deadly chemicals to push into his muscles, prolonging his life and causing severe chemical burns.

Richard Dieter, executive director of the Death Penalty Information Center, said other states each have different issues that have prevented them from resuming executions. Although all states that use lethal injection use the same three drugs, it is unlikely they will have picked up any information from Florida's procedure changes.

"Each state has factual differences," he said.

The situation in Ohio is the result of a judge who wants to see the state change to a single drug, Dieter said. Most states use the same three chemicals.

Ohio has had two problematic executions, in May 2006 and May 2007, both dealing with problems finding suitable veins in the condemned inmates.

In Tennessee, the state put a moratorium on executions in 2007 after it was sued over its lethal injection procedures.

One inmate was executed in 2007 before a federal judge ruled against the new procedures on the grounds that they pose "substantial risk of unnecessary pain" to the inmate. The judge barred the state from using its lethal injection procedures until it addresses problems with training and medical expertise.

The judge's order has been appealed but remains in effect despite the recent U.S. Supreme Court ruling that upheld lethal injection.

The U.S. Supreme Court agreed on June 24 to hear two death penalty cases, both from Tennessee, which could influence that state's future executions.

In Alabama, the state adjusted its protocol last year to make sure the inmate was unconscious when the lethal drugs are administered, similar to the process used in Florida.

An execution is scheduled July 31 in Alabama.

Dieter expects an uptick in the number of executions, partially to clear the seven-month backlog caused by the U.S. Supreme Court's refusal to allow states to proceed while it considered two cases from Kentucky.

"The pace is clearly quickening," Dieter said.

Dr. Jonathan Groner, a professor of Clinical Surgery at the Ohio State University College of Medicine, who has written extensively about the role of medical professionals in capital punishment, believes other states will take a cue from Florida.

"It will embolden other states to move forward. There will be more executions until there is another horrible botch," Groner said. "A Diaz-like failure is still possible."

Cannon agreed.

"I can only guess what will happen based on data which shows a substantial probability that future executions will be problematic," he said. "Human experience teaches us that we are not perfect. We encounter problems when we fail or refuse to acknowledge the fact."


Associated Press writers Andrew Welsh-Huggins in Columbus, Ohio, Teresa Wasson in Nashville, Tenn., and Kendal Weaver in Montgomery, Ala., contributed to this report.

Instant Editorial: Death Penalty is immoral

Martha Hill

Mark Dean Schwab is scheduled to be executed today at 6 p.m. for the 1991 slaying of Junny Rio-Martinez.

Every human, without distinction of race, culture or religion, is created in the image and likeness of God, thus he or she is filled with the same dignity of person.

No one, much less a government, can take away the life of God’s creation. Why would I trust the government, which is often inept at best and hopelessly partial and corrupt at worst, to decide who lives and dies?

I understand that those who commit violent crimes must be separated from society lest they create new victims. And I do not suggest that they should not be punished. But as a person of faith living in a violent culture, I would urge victims' families and friends to seek justice without vengeance, and to seek an end to the cycle of violence by punishing murderers without executing them.

Retributive justice in modern society is meaningless, as the death penalty does not serve as a deterrent to criminal activity; therefore, the death penalty has become simply an instrument of vengeance. This is immoral.

--------------------------------------------------------------------------------

For Mark

Prayer for the Deceased

Go your way to the land of the Ancestors,
where they wait for you with open arms,
there on the edge between this world and the next.
See; there they stand.
Ancestral spirits, welcome this one
to the place where we all must go.


- Ceisiwr Serith

Crist: 'Justice requires it'

Paul Flemming
News Journal capital bureau

TALLAHASSEE – Gov. Charlie Crist is solemn, yet certain, as the hour approaches for the first execution from a death warrant he signed.

Child rapist and murderer Mark Dean Schwab is set to die by lethal injection at 6 p.m. Schwab would be the 65th prisoner executed in Florida since the death penalty resumed more than three decades ago, the first in the state in 18 months after a moratorium following a lethal injection that went awry, and the first execution of Crist's administration.

"It's very difficult. I feel the weight of that duty," Crist said in a telephone interview this afternoon. "Yet I understand that justice requires it."

Schwab's attorneys have filed a final appeal to the U.S. Supreme Court seeking to delay the execution. Crist said he expects the court to reject it.

"It's properly the most solemn thing the administration undertakes. We approach six o'clock with great seriousness" and understanding of what it represents to the family of victims and the justice it delivers to them, Crist said.

Crist witnessed an execution in 1998, while he was a state senator then known as Chain-Gang Charlie for his strict law-and-order policies. Leo Jones, convicted of the 1981 sniper shooting of Jacksonville police officer Thomas Szafranski, was executed March 24, 1998, in Florida's electric chair.

"My purpose was that I had spoken in favor of the death penalty and I wanted to see what it was. I thought it was the appropriate thing, as a state senator at the time, to do."

In 2000, Florida established lethal injection as the state's first choice for carrying out the death sentence after a series of mishaps with the electric chair, including condemned prisoners bursting into flames.

"One of the things I took away from it -- I drove over from Tallahassee, I knew I was going the next day, it was hard to sleep that night before -- but it was administered professionally," Crist said of Jones's execution.

Lethal injection, too, has had difficulties. Schwab's execution would be Florida's first since the botched lethal injection of Angel Diaz in December 2006. The needles that deliver the lethal three-drug cocktail missed Diaz's veins and sent the poison instead into his muscles. Diaz took about 34 minutes to die, more than twice as long as executions earlier that year.

Then-Gov. Jeb Bush declared a moratorium on executions and named a commission to study Florida's methods. That group, and the courts, last year approved new protocols that increase personnel and training for lethal injection and include safeguards that aim to assure the condemned prisoner is fully unconscious.

Crist said he has confidence in the new procedures.

"The department has worked very hard with others to develop appropriate protocols. I have faith and confidence," Crist said.

Florida's Roman Catholic bishops last week called on Crist to stop Schwab's execution, as they do before all executions.

"I've prayed about it," Crist said. "I'm sympathetic to their point of view, of course. I respect it. I have a different point of view. This is how I feel."

Crist has not called the family of Junny Rios-Martinez, the 11-year-old Cocoa boy that Schwab abducted, raped and murdered. Crist said he asked his staff if the family had asked to hear from him. They had not, Crist said, and so he has not reached out.

Crist will be in his Capitol office this evening, on a dedicated phone line to the death chamber at Florida State Prison where Schwab will be executed. Crist and his staff will monitor the execution from there and certify the death warrant he first signed last year before a U.S. Supreme Court state delayed Schwab's sentence in November.

--------------------------------------------------------------------------------

Child killer Mark Schwab executed at Florida State Prison

STARKE, FL -- Mark Dean Schwab was executed Tuesday night at Florida State Prison for the rape and murder of 11-year-old Junny Rios-Martinez.

His sentence was carried out by way of lethal injection. He was pronounced dead at 6:15 p.m.

Schwab's execution came on the 16th anniversary of the date when he was sentenced to die for the kidnapping, rape and murder of Junny in Cocoa.

Peter Cannon, one of Schwab's attorneys, filed an appeal Monday evening with the U.S. Supreme Court. But, that appeal was denied.

The high court gave Schwab a stay in November as it considered the constitutionality of Kentucky's lethal injection procedure. When it ruled Kentucky's protocol was acceptable, it opened the door for Florida and other states with similar laws to resume executions.

The lengthy Supreme Court appeal says as a result of the Kentucky decisions, "there remains much confusion as to the proper standard for analyzing the method of execution cases."

Schwab was the 10th person executed in the United States since the U.S. Supreme Court ruled in the Kentucky case and the 21st inmate to die by lethal injection since Florida changed its method of execution in 2000. He was the 65th inmate to be executed since Florida resumed capital punishment in 1979.

Schwab's execution was the first in Florida since December 2006 when the execution of convicted killer Angel Diaz led to a state-imposed moratorium and investigation into his prolonged death.

A medical examiner said the executioner pushed the needles through Diaz's veins and into his muscles, causing him extreme pain. It took 34 minutes for him to die, about twice as long as normal.

Despite several revisions to Florida's execution protocol, Schwab's attorneys claimed Florida's procedure fell short of the U.S. Supreme Court standards. They claimed several mock training executions conducted by Florida prison officials showed a 30 percent failure rate.

After being turned down by courts in Titusville and Tallahassee last week, Schwab's attorneys sought permission from the 11th Circuit Court of Appeals in Atlanta for permission to file another round of federal appeals, but that was also turned down.

Schwab raped and killed Junny in April 1991, about a month after he was released early from a prison sentence he got for raping a 13-year-old boy, who was from Cocoa, a small town on the Atlantic coast of Florida.

Schwab got close to the boy and his family by posing as a reporter who promised to help the boy with his dream of becoming a professional surfer. On the day of the rape and murder, Schwab called the boy's school posing as his father, then picked him up there.

The case prompted Florida's Junny Rios-Martinez Act of 1992, which prohibits sex offenders from early release from prison or getting credit for good behavior.

Schwab's execution took place at the state's death chamber in Starke, about 40 miles southwest of Jacksonville.