Out of Proportion?
For all the sound and fury, the death
penalty affects only a small number of criminal cases
Death penalty discussions tend to
revolve around the issue's moral dimensions and usefulness (or lack thereof)
as a deterrent to crime.
But a crucial point that often gets
left out is how rarely capital punishment is likely to be used. It may be
a hot political issue, but in practical application, the death penalty is
Even in Tennessee's first electric
chair era, when an execution could easily be carried out within a year or
two of a conviction, the death penalty was applied on average less than three
times a year. The state electrocuted 125 people between 1916 and 1960, 88
for murder, 36 for rape, one for both (85 of them, including 31 of the rape
convicts, were black). There are no official records of capital punishment
in years prior to 1916, when the method of execution was hanging. The last
man sent to the electric chair was a Knox County native named William Tines,
convicted of the 1957 rape of a Harriman woman and executed on Nov. 7,
Since then, the state has not put
anyone to death, although not for lack of talking about it. When the U.S.
Supreme Court lifted its ban on the death penalty in 1976 (after having found
it unconstitutional in 1972), the Tennessee Legislature rushed to pass a
new capital punishment law. It took two years to come up with a statute that
passed muster with the state Supreme Court (Gov. Ray Blanton vetoed the bill,
but the Legislature easily overrode him).
In the intervening two decades, more
than 100 convicted murderers have been sentenced to dienone hasand
39 of them eventually had their sentences reduced to lengthy prison terms.
The rest sit in small concrete cells behind thick electronically locked doors
at Riverbend, waiting to hear from lawyers or judges about the status of
their various state and federal appeals. (In addition to the 94 men at Riverbend,
two women, including Knoxville Job Corps murderer Christa Pike, are held
at the nearby Tennessee Prison for Women; a 95th man is housed at Brushy
Mountain Penitentiary because of behavior problems).
Ninety-seven people on death row is
not an insignificant number. But as a percentage of total violent
crimeseven total first-degree murdersin Tennessee over the past
20 years, it's small. That's mostly because state law explicitly limits the
death penalty to the "worst of the worst" crimes. To be eligible, a case
must have one or more of 13 "aggravating factors." They include: the murder
of a child younger than 12 by an adult older than 18; previous violent felony
convictions for the defendant; murder for hire (or hiring someone to commit
murder); murder of a law enforcement officer; and the "heinous, atrocious,
or cruel" torture standard. The law also includes nine mitigating factors
that can be considered by a jury in deciding whether to give a death sentence,
including the defendant's youth, intoxication at the time of the murder,
and whether he or she was acting under the domination of another person.
"The general public sometimes doesn't
understand," says District Attorney General Al Schmutzer, chief prosecutor
for Sevier, Cocke, Jefferson, and Grainger Counties. "They think a first-degree
murder case, [a defendant] pre-meditatively committed the crime, then they're
automatically subject to the death penalty, and that's just not it. I try
a lot of first-degree murder cases, most of which are not subject to the
death penalty...It's much easier to talk about it than it is to go and be
a part of it and do it."
The politically ambitious Schmutzer,
who serves in the most hard-core Republican district in the state, is no
bleeding-heart when it comes to capital punishment. During his unsuccessful
run for Congress in the 1st District last year, he pointed out that he was
the only one in the crowded candidate field who had actually prosecuted a
death penalty case. Yet, by his own estimate, he has sought the death penalty
only about 15 times in the past 20 years. Just four of those cases resulted
in death sentences (three of which have been reversed on appeal due to inadequate
defense counsel and sent for resentencing). In Knox County, Randy Nichols
has filed nine death penalty notices in his five years as D.A., out of 75
homicide cases. To date, only onethe Christa Pike casehas brought
a death sentence.
Those numbers are mirrored statewide.
According to the state's Administrative Office of the Courts, out of 420
first-degree murder convictions since 1993, the death penalty was sought
in 107, and death sentences were handed down in just 18, or 4 percent of
As Tennesseans clamor for the death penalty,
judges are caught in a political crossfire that threatens to upend the scales
by Jesse Fox Mayshark
"Execution Day, 5:00 a.m.
...Inmate will be dressed in cotton trousers, shirt, and cotton socks, flip
flops, or cloth houseshoes. Trousers and shirt are to be without any metal...The
Administrative Assistant or designate, designated electricians, and physician
will report to the execution chamber for preparation. The Administrative
Assistant or designate will check the phones in the chamber. The electrician
will ready the equipment and the physician will stand by...Deputy Warden
will supervise the shaving of the condemned inmate's head and legs."
From Death Watch Procedures, Riverbend Maximum Security
Institution, Tennessee Department of Correction
Tennessee is ready for an execution. For many executions, really. At Riverbend
Maximum Security Institution, halfway up a dead-end road in a dreary West
Nashville prairie of industrial parks and boxy state buildings, everything
is in place.
There are the inmates, 94 at the moment (plus three held elsewhere), housed
in the prison's Unit 2, a cement quadropod at the southwest end of Riverbend's
modern penal campus. There are the warden and his staff, who run execution
dress rehearsals as often as once a month, a drill that takes no more than
15 minutes start to finish. And, in a small, sterile cinderblock chamber
just off Riverbend's main inmate visitation gallery, encircled by blue
museum-lobby ropes, there is the chair.
It is wide and tall, five feet or so of solid wood painted a dark muddy brown,
with heavy seatbelt straps criss-crossing its front and a small pillory at
the foot with two legholes. The seat is a thick sheet of plastic, perforated
with pencil-size holes. Below it is a plastic tray several inches deep. Somewhere
behind a blackened window to the left is a switch that will send 2,640 volts
flowing to a small gray box on the floor behind the chair's rear left leg,
and from there through three gray electrical wires that run to the legholds
and padded headrest.
This square room, with its sparkling linoleum floor and four fluorescent
lights, is the quiet center of a political storm howling through Tennessee.
What happens hereor, more to the point, what hasn't happened here
yetreverberates far beyond Riverbend's razor-wire topped fences. Next
year, every attorney general, trial judge, appellate judge, and Supreme Court
justice in the state will stand for re-election, and the issue most likely
to be invoked in every race is the death penaltyhow vigorously they
pursued it, how many convictions they got, how many death sentences they
handed down, upheld, or held up. Those facing the ballot box are well aware
of it, and of the oft-repeated fact that Tennessee hasn't put anyone to death
"I read [in] the latest Mason-Dixon poll, 81 percent of Tennesseans were
in favor of the death penalty," says Knox County District Attorney General
Randy Nichols, seated behind his desk in the spacious office where he and
his staff decide in which cases to ask for death. "I doubt we could find
a vote of 81 percent on any other topic in this state. So for somebody who
runs for a political office every eight years and tries to keep in tune,
of course it's got significance. I would be a liar to say I don't pay attention
to that. I do pay attention to that. And I think that everybody's paying
attention to it now."
That's exactly what troubles some observers of the justice system. In a state
where one Supreme Court justice already lost her seat in an election dominated
by the death penalty, where the Legislature has called for impeachment of
a federal judge because of his rulings in capital cases, some attorneys and
legal scholars warn the whole concept of equal protection under the law is
in danger. They worry that prosecutors eager to keep their office or advance
to another will try to make every case a capital one; that defense lawyers
will be given fewer resources and less time to prepare for death penalty
trials; and especially that judges, the fulcrum in the balance of the judicial
system, will let their rulings be swayed by popular opinion.
"What I have seen, what's scary and really disheartening, in the last three
to four years, is a link between politics and the death penalty and the
judiciary," says Greg Isaacs, a high-profile Knoxville defense attorney and
board member of the Tennessee Association of Criminal Defense Lawyers.
"...They're putting judges under a microscope. They're putting lawyers and
prosecutors under a microscope."
He adds, without apparent irony, "It's just a very electrically charged
Penny White waves and walks out of the lobby restaurant in Knoxville's Hyatt
Regency Hotel, where she had been saying hi to a friend.
"Are you sure you want to talk to me?" she asks, smiling. "There are a lot
more important people here." She gestures at State Supreme Court Justice
Adolpho A. Birch, sitting at one of the restaurant's tables, and a casually
dressed Sen. Bill Frist at another. Like White, they're in town for the
dedication of the University of Tennessee's new law school. And at first
blush, both the judge and the senator may well seem more significant personages
than White, who at the moment is a visiting professor of law at Washington
and Lee University in Virginia.
But for those on any side concerned with the future of the judicial system
and justice itself in Tennessee, no name looms larger than White's. The
highlights of her story are well-known: a Johnson City lawyer and UT law
school grad who was the first female circuit court judge in East Tennessee;
an appointee by Gov. Ned McWherter to the state Court of Criminal Appeals
in 1992 and then to the state Supreme Court in 1994, where she was the youngest
and only female justice; and the target of a political campaign in 1996 that
led to her being ousted from the bench by a 55-45 margin on a "Yes-No" vote.
There are a lot of interpretations of what happened to White, but no one
discounts the role the death penalty played. It was White's vote in one capital
casethat of rapist/murderer Richard Odomthat took center stage
in the campaign against her. John Davies, president of the Tennessee Conservative
Union, which led the anti-White charge, declared the election "a referendum
on the death penalty." The TCU has vowed to target at least two other Supreme
Court justicesmost likely Birch and Lyle Reidnext year. Not
coincidentally, Birch and Reid voted with White in the controversial section
of the Odom decision (in which they found Odom's crime did not meet the legal
standard of "heinous, atrocious, or cruel" required in the state's death
White herself has no doubt about what led to her defeat or what its implications
are for other judges.
"I think there were two distinct factions," she says, seated comfortably
in one of the Hyatt's oversized chairs as various well-wishers stop by to
shake hands and exchange phone numbers. "I think one faction was totally
political, and it was a faction which desired to create a vacancy at any
cost. And I think that faction capitalized on the emotional aspects of the
capital punishment issue. There was a second faction of basically apolitical
people who were understandably tired of being fearful of going to the grocery
store or to Wal-Mart or whatever, and who really and truly believed in their
hearts that I was standing in the way of capital punishment. Those people
are the ones I feel the most regretful for, because they were totally and
It was, White believes, the exploitation of the second group by the first
group that produced a popular image of her as a liberal judge rushing to
disconnect the electric chair. It didn't help that the legal oddities of
her election required her to disclose a party affiliationDemocratin
a state that's been swinging hard to the Republican party. Next year's elections
won't include party labels.
Among other things, her loss and the national attention it generated (at
least within the legal community) led to White's current post as director
of the Virginia Capital Case Clearinghouse, a resource for prosecutors, defense
attorneys, and scholars based at Washington and Lee. She also teaches a
constitutional law course on capital punishment, which has given her plenty
of opportunity to consider how the death penalty affects the justice system.
Although she still resists the anti-death-penalty tag attached to her in
the electionshe insists that as a judge, she was ready to uphold state
law when it appliedshe clearly has reservations about the political
rhetoric surrounding the issue.
Capital cases are legally complex. There are 13 possible steps between a
D.A.'s decision to seek the death penalty and an execution, including multiple
appeals to state and federal courts. White says it's too easy for politically
motivated critics to single out for attack one decision by one judge at one
of those levels. (Although it was pointed out in the media, many people missed
the fact that Odom would have been sent for resentencing on other grounds
even without the "heinous, atrocious, or cruel" opinion.) While such attacks
are inevitably leveled in the name of public accountability, White says their
net effect is to undermine the constitutional principal of judicial independence,
the notion of justice blind to anything but the facts of a case.
"When knee-jerk reactions displace and replace judicial leaders, then basically
you could end up with a judiciary that's untrained and that's simply basing
their rulings on what they think public opinion is," she says. "That is extremely
She has watched with sympathy the case of Nashville federal circuit Judge
John Nixon, who has for several years been under fire from prosecutors,
politicians, and victim's rights groups for a series of reversals in death
penalty cases. The state Legislature passed a resolution this year asking
Congress to impeach him. Nobody expects that to happenfederal judges
are appointed for life, and generally impeached only in cases of corruption
or incompetencebut the vote upped the political ante on the death penalty
in Tennessee. Nixon won't comment publicly on the situationhis secretary
says he's told her to refuse all interview requestsbut White says she
has some idea what he's going through.
"I got some violent letters during my campaign," she says. "I got one letter
that suggested I should be locked in a cage with Richard Odom and 10 others
like him and raped repeatedly and torn limb from limb, and then maybe I'd
understand what cruelty meant."
...The Warden, Deputy Warden, Chaplain, and assigned officers will escort
the condemned inmate to the execution chamber...His arms will be secured
by mechanical restraining devices...The Deputy Warden and assigned officers
will place the condemned inmate in the chair....
Rebecca Easley knows what cruelty means. Sitting outside a Knox County federal
courtroom, where she has come to lend moral support to the victim's family
in a hearing for death row inmate Walter Carruthers, she talks persuasively
about the prolonged suffering endured by the survivors in murder cases that
lead to death sentences.
"If we're going to have [the death penalty] as a law, if that's on the books,
then the law should be carried out," she says, fingering a crystal pendant
hanging from her necklace. "When you have 100 murderers on death row, some
as long as 20 years, because one word was left out of jury instructions or
something like that, and crime is proliferating all over the place, people
Articulate, thoughtful, and mad as hell, Easley is both the embodiment and
the avenging angel of a frustrated citizenry. She was active in the campaign
to oust White and is proud of the achievement. A full-timealbeit
unpaidadvocate for victims' rights, she has lobbied in Nashville and
Washington, D.C., for stricter limits on inmate appeals, for time limits
on judicial decisions so appeals don't drag on forever, for greater
accountability in the federal judiciary.
"I don't think the judiciary should be so independent that they have almost
absolute power, where the majority's opinion and wishes don't matter," she
Her credentials on the subject are unassailable. Twenty years ago, her sister's
husband hired men to kill her sister, a murder that was carried out in gruesome
and tortuous fashion. One of the hired men got the death penalty, as did
Easley's brother-in-law, William Groseclose. At the time, Easleywho
has just written a book about the case, Murder in Memphissays her family
was not out for blood.
"When the sentences were handed down, in the back of our minds, I don't think
we ever expected them to be executed," she says. "But we expected them to
be in prison for the rest of their lives so we wouldn't have to worry about
Instead, the case got appealed to Judge Nixon's federal court. In one of
his most controversial rulings, Nixon in 1994 overturned not only the death
sentences but the convictions themselves and ordered a new trial. The state
has appealed to the 6th U.S. Circuit Court in Cincinnati, but even the
possibility of a new trialwith its attendant possibility of
acquittalangered Easley enough to set her on her current path of victims'
rights advocacy. Even so, to her the death penalty per se is not the
pointshe says she would have been just as satisfied had her sister's
killers been sent to prison for life.
"My family and I waited 17 years," she says. "We waited for the system to
Lloyd Daugherty, the gregarious chairman of the Tennessee Conservative Union,
says that's exactly what capital punishment represents to the general public:
a system that's not working.
"I think that the death penalty, as much as anything in the minds of Tennesseans
and Southerners and Americans, is a symbolic public carrying out of justice,"
he says. "And I don't think the citizens are seeing much justice."
But such symbolism has real effects on the judicial system. Knox County D.A.
Nicholswho counts himself as a friend of White's, even though he publicly
criticized the Odom decisionis cautious about placing too much blame
on any one part of the complex legal infrastructure.
"I wholeheartedly agree that the system's too slow. I wholeheartedly agree
that there ought not to be endless appeals, and there needs to be finality
of judgment," he says. "But for me to play that, when I know the status of
the law and those things, is counter-productive in the long run. To point
a finger at a member of the court or to point a finger at a particular judge
is not making it any better."
The death penalty has always been a political animal with the potential to
bite judges. In 1934, Alabama Circuit Judge James Edwin Horton was voted
out of office largely because he ordered new trials for three young black
men sentenced to death in a rape case.
But the issue has arguably never before had such widespread political potency.
Atlanta law professor Steve Bright says White and Nixon are both examples
of a nationwide political trend. In a 1994 Boston University Law Review article
titled "Judges and the Politics of Death"an article White says she
wishes she'd read before her defeathe cites examples in many states
where judges have been used as political foils by legislators and prosecutors.
"The crime debate in general has really gotten us in a situation where we're
sacrificing fairness for results," says Bright, director of the Southern
Center for Human Rights, a nonprofit group that focuses on the death penalty
and prison conditions. "The result is this sort of game of one-upmanship.
Who can be most for the death penalty? Who can be most for this, that, or
Judges are an easy target, not least because they're generally barred from
taking stands on issues or discussing the facts of any individual case during
a political campaign. So even as they increasingly find themselves being
publicly second-guessed and lambasted in re-election bids for any ruling
against a death sentence, their ability to respond is severely restricted.
The trend has been noted at the highest reaches of the American judicial
system. In a dissenting opinion in a 1995 case, U.S. Supreme Court Justice
John Paul Stevens warned that capital punishment has assumed a dictatorial
role with influence similar to that wielded by King George III over Colonial-era
judges: "The 'higher authority' to whom present-day capital judges may be
'too responsive' is a political climate in which judges who covet higher
officeor who merely wish to remain judgesmust constantly profess
their fealty to the death penalty."
Isaacs bluntly calls "the Penny White era" in Tennessee a "microcosm of
McCarthyism," and it's an analogy Bright agrees with. In the ubiquitous political
slur "soft on crime," he hears an echo of the "soft on communism" tag used
to great effect during the Cold War. He notes that Bill Clinton in 1992 found
it necessary to disarm the issuewhich George Bush had used against
the anti-death-penalty Michael Dukakis in 1988by making a point of
presiding over an Arkansas execution at the height of his presidential campaign.
The blueprint for using the death penalty as a political bludgeon was drawn
up in California, Bright says. In 1986, California Gov. George Deukmejian
publicly blasted three Supreme Court justices because of their death penalty
rulings. All three lost in the next election, and Deukmejian appointed their
successors. The result has been a court that critics say rubber-stamps death
sentences. In the first five years of this decade, the California court affirmed
97 percent of capital convictions it reviewed, one of the highest rates in
the nation. Bright notes that Tennessee Gov. Don Sundquist issued a warning
similar to Deukmejian's after White's defeat, saying, "The other judges are
on the ballot two years from now. Let's see if they got the message."
"There's sort of a feeding frenzy going on," Bright says. "'We got White,
now we've got to get Nixon.' I don't know whether that will carry over to
the next election, but you'd think those guys on the bench would be looking
over their shoulder."
A designated staff member shall announce that the sentence has been carried
out and invite witnesses to exit...The Deputy Warden and Death Watch Supervisor
will supervise inmate's removal from chair and his placement in examination
room next to execution chamber..."
Whether judgesor district attorneys, who must make the initial decision
to seek death in a casehave changed their approach to capital cases
in Tennessee is a matter of debate.
"I would think your average D.A. would be racing to get indictments in capital
cases," observes State Sen. Bud Gilbert (R-Knoxville), a staunch death penalty
But so far in 1997, the state's Administrative Office of the Courts has records
of 11 capital cases out of 66 first-degree murder convictions. That's actually
slightly behind last year's ratio of 28 capital cases to 102 first-degree
murder convictions. There's no real way to measure the influence on the judiciary
itself, since so few capital cases have gone through state appeals in the
year since White's defeat. But it's interesting to note that on Monday, the
state Supreme Court affirmed the death sentence of Sedley Alley, convicted
of a brutal murder in 1987. The state Court of Criminal Appeals, in a decision
written by White during her term on that bench, had stayed Alley's execution
on the basis of prejudicial remarks made by the trial court judge. Of course,
the new ruling is open to interpretation: it could signal a court anxious
to prove its merit in death cases, or, as the victim's family no doubt sees
it, the rule of law finally prevailing after a long delay.
(As a side note, juries also appear more willing to impose death in recent
years. Out of 39 capital cases in the past year-and-a-half, 11 ended in death
sentences. In the previous three years, just seven out of 68 capital cases
led to a death sentence.)
Knox County Public Defender Mark Stephens worries about how the current political
environment is conducive to fair trials for the indigent defendants his office
At his desk in a gray building plunked down in a sort of no-man's-land in
the shadow of I-40 near Mechanicsvillewithin walking distance of the
housing developments that are home to many of his clientsStephens words
his concerns carefully. He has confidence, he insists, in the ability of
judges in local trial courts and at higher levels to withstand the political
pressure and act fairly. But he also worries that politicians catering to
public fears about crime have painted a distorted picture of the judiciary.
"I've practiced criminal law for 18 years," says Stephens, who has defended
three capital cases (one was acquitted, one led to a hung jury, and one produced
a death sentence). "I've never seen one of those liberal, soft judges that
were letting everybody out of jail...[But] because of that public perception,
the public is responding to that, and they are trying to and are effectively
impacting the independence of the judiciary."
Gilbert, who proudly touts the Legislature's recent record of strengthening
the death penalty, brushes aside the concern. "Maybe I'm just naive," he
says, "but I think most of these judges, they're not just going to compromise
their judicial ethics and practices on that basis."
E. Riley Anderson, chief justice of the state Supreme Court (and up for election
next year), says public scrutiny of the legal system is healthy.
"I think the judges will do their job," he says, seated in his office in
the state Supreme Court Building on Locust Avenue in downtown Knoxville.
"It may take more strength to do their job in that kind of environment...[But]
if I felt like I had to trim [legal corners] in order to be elected, I'd
just stop and do something else."
Even White says she wants to believe her old colleagues won't tailor their
rulings to meet public approval. But Harmon Wray, a board member of the
anti-death-penalty Tennessee Coalition to Abolish State Killing, says that's
"It clearly affects how [judges] feel," he says. "And the cult of objectivity
notwithstanding, how people feel has a big effect on what they do."
Wray doesn't expect the politics of the death penalty to cool down anytime
soon. "The Legislature's already dominated by people who are pro-death penalty,"
he laments. "You can't find two legislators in the state of Tennessee that
you can rub together and make a fire against the death penalty. They're just
Which means judges can count on more pressure. Two years ago, the Legislature
passed a bill limiting the number of appeals in capital cases. Anderson says
the State Supreme Court has stepped up its aggressiveness, monitoring death
penalty cases at all levels of the state system and nudging courts that sit
on them too long. The state is also trying to qualify for the federal
Anti-Terrorism and Death Penalty Act, which promises to speed up federal
consideration of death penalty appeals if states put some extra money into
providing legal representation for capital case defendants.
Critics say such obsessive focus on capital punishment comes at the expense
of sound justice and good government. As long as the death penalty dominates
the crime-and-punishment discussion, they say, political and judicial leaders
are avoiding dealing with tougher issues: what causes crime, how to prevent
it, whether criminals can be "rehabilitated," how to foster healthy social
"I was a criminal justice major," White says, "and I studied corrections
and all that stuff in college, and this is a very unpopular thing to say,
but I still believe that we'll never stop the crime problem until we spend
some of our effort on young, young, young juveniles and drug education and
drug interdiction, and family interdiction...[But the death penalty] becomes
the sole issue, so we're unable to focus attention on how we save our kids.
It becomes the one issue."
How powerful that issue will be in next year's elections remains to be seen.
There will be a host of state and local races on the August ballot, so the
judicial races won't stand out the way White's did when there was virtually
nothing else to garner public and media attention. Anderson says next year
will also be the first time the Supreme Court justices will be evaluated
by an independent commission, which will give voters more to go on than just
one or two decisions.
But if other states are any indication, the death penalty is likely to solidify
its position as a litmus test for state judges, who will find themselves
increasingly pressed to apply it at all costs.
"I think what people are going to find is we've paid a high price for the
death penalty and these executions, and the price we've paid is a great deal
of erosion in the rule of law," Bright says. "...At some point, I think people
realize, well, wait a minute, we really don't have the protection of an
independent judiciary. And you hope that the pendulum starts to swing the