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 seldom invoked.

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, 1960.

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 die—none has—and 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 crimes—even total first-degree murders—in 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 one—the Christa Pike case—has 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 the total.

—J.F.M.

As Tennesseans clamor for the death penalty, judges are caught in a political crossfire that threatens to upend the scales of justice

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 here—or, more to the point, what hasn't happened here yet—reverberates 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 penalty—how 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 since 1960.

"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 environment."

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 case—that of rapist/murderer Richard Odom—that 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 justices—most likely Birch and Lyle Reid—next 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 penalty law).

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 completely misled."

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 affiliation—Democrat—in 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 election—she insists that as a judge, she was ready to uphold state law when it applied—she 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 dangerous."

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 happen—federal judges are appointed for life, and generally impeached only in cases of corruption or incompetence—but the vote upped the political ante on the death penalty in Tennessee. Nixon won't comment publicly on the situation—his secretary says he's told her to refuse all interview requests—but 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."

"5:55 a.m.
...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 get frustrated."

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-time—albeit unpaid—advocate 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 says.

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, Easley—who has just written a book about the case, Murder in Memphis—says 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 them."

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 trial—with its attendant possibility of acquittal—angered 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 point—she 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 work."

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. Nichols—who counts himself as a friend of White's, even though he publicly criticized the Odom decision—is 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 defeat—he 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 the other?"

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 office—or who merely wish to remain judges—must 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 issue—which George Bush had used against the anti-death-penalty Michael Dukakis in 1988—by 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."

"6:00 a.m.
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 judges—or district attorneys, who must make the initial decision to seek death in a case—have 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 supporter.

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 represents.

At his desk in a gray building plunked down in a sort of no-man's-land in the shadow of I-40 near Mechanicsville—within walking distance of the housing developments that are home to many of his clients—Stephens 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 wishful thinking.

"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 not there."

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 environments.

"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 other way."