Death Penalty Moratorium Debate Returns To Congress

By Jeff Johnson | July 7, 2008 | 8:28 PM EDT

Capitol Hill ( - The case of a 47-year-old Virginia man convicted of murder in 1992, despite the fact that his court-appointed attorney had previously represented the victim in an unrelated case, has renewed interest in the death penalty moratorium debate.

Walter Mickens, Jr., who sat on Virginia's death row since August 20, 1993, was executed Wednesday night by lethal injection after Virginia's Democrat Governor Mark Warner refused his clemency request.

Mickens was convicted of sodomizing, then stabbing 17-year-old Timothy Hall 143 times in March 1992. Five courts, including two jury trials and the U.S. Supreme Court, have concurred on Mickens' guilt. What almost no one agrees on, however, is whether or not he got a fair trial.

Mickens' court-appointed attorney had been representing Timothy Hall in an unrelated case. Death penalty opponents call that a clear conflict of interest, but U.S. Supreme Court Justice Antonin Scalia called it "a mere theoretical division of loyalties."

The case is one of many that opponents -- and even some supporters of capital punishment -- point to in their calls for a moratorium on executions until a thorough examination of capital cases, and the death penalty process itself, can be completed.

Sen. Russ Feingold (D-Wis.), who opposes the death penalty under any circumstances, has introduced the National Death Penalty Moratorium Act.

The proposal would place a moratorium on executions by the federal government and urge the states to do the same, "while a "National Commission on the Death Penalty reviews the fairness of the imposition of the death penalty."

"Congress has an important responsibility to ensure that innocent people are not executed and that constitutional protections are respected in the administration of capital punishment across the country," Feingold said.

His proposal is based on the findings of a similar commission created by Illinois Gov. George Ryan, a Republican. The Senate Judiciary Subcommittee on the Constitution, which Feingold chairs, also heard testimony on the Illinois commission's findings Wednesday.

After reviewing the nearly 300 Illinois death penalty convictions since 1977, the commission concluded that, "No system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no ... innocent person is ever again sentenced to death."

Ryan, who voted 25 years ago to reinstate the death penalty in Illinois, says the commission reviewed, with particular scrutiny, cases of death row inmates who had subsequently been found not to have committed the crimes for which they were convicted.

"I was looking at our shameful scorecard: since the death penalty has been reinstated in 1977, 12 inmates had been executed and 13 were exonerated," he noted. "To put it simply, we had a better than fifty-fifty chance of executing an innocent person in Illinois."

Ryan ordered a moratorium on executions and has submitted the recommendations of his commission to the state legislature for enactment into law.

"My bill proposes barring the execution of the mentally retarded, mandating that 'natural life' is given as a sentencing option to juries, reducing death penalty eligible factors from 20 to five, and barring the death penalty when a conviction is based solely on a jailhouse 'snitch,'" he explained.

While they support many, in fact most of the recommendations made by the commission, death penalty supporters say the study was flawed from the outset by the panel's bias against the death penalty.

"There were 17 members on this commission, but only one active prosecutor, no active law enforcement officers, yet they made all of these recommendations," noted Druanne White, a prosecutor from the Tenth Judicial Circuit Court in South Carolina.

White acknowledged that there were several former prosecutors and an attorney who represents a law enforcement agency administrator on the panel.

"Would anyone claim this was a bipartisan, fair committee if we put 16 Republicans and one Democrat on it and said, 'It's fair because some of the Republicans used to be Democrats?" she asked. "That's what we've got [with the Illinois commission]."

White notes that the commission states in its report that "All members of the commission believe ... that the death penalty has been applied too often in Illinois since it was reestablished in 1977." Additionally, the report states that a "majority of the commission would favor that the death penalty be abolished in Illinois."

"Innocent people will pay the price if some of these proposals are adopted, because there isn't any balance," she argued. "We must balance the rights of victims with the rights of defendants."

Scott Turow - an attorney, member of the Illinois commission, and author of numerous legal novels - says he is not morally opposed to the death penalty. He also agrees that victims' rights should be protected, but says standards must be very high when the death penalty is a possible sentence.

"Capital punishment is reserved for the worst of the worst. It is those murders, which, by their character, most outrage the conscience of the community," he told the committee, adding that the nature of the crimes makes it more difficult to fairly administer death penalty trials.

"Capital punishment is invoked in cases where emotion is most likely to hold sway and where rational deliberation is most problematic for everyone -- for investigators, for prosecutors, for judges, for juries," he continued. "This is a system that, I believe, merits the enhanced safeguards that our commission proposed."

Sen. Dick Durbin (D-Ill.) agrees.

"The only morally coherent position you can take, with the evidence that Governor Ryan had before him, is to establish a moratorium until there is clearly established a line of evidence and a clear record that the men and women on death row are there only because they committed the crimes they were charged with," he said.

"I don't think any of us want to see an innocent person killed by the state," Durbin said.

In a written statement, Sen. Strom Thurmond (R-S.C.), the ranking minority member of the subcommittee, said he agrees with Durbin on that point, but felt it necessary to clarify some of the impressions left by the Ryan Report.

"Despite reports to the contrary, many of the exonerated individuals have not been shown to be actually innocent, and several of them were released due to procedural missteps," he wrote. "Nevertheless, the prospect of the execution of an innocent person is unacceptable, and I am committed to preventing it."

Thurmond does not, despite the exonerations in Illinois, support a moratorium on federal executions.

"There is absolutely no evidence to indicate that there is one innocent person awaiting execution for a federal offense," he wrote. "The fact remains that the administration of the death penalty at both the federal and state levels is more accurate than ever."

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