#National Post | News » Tide may be turning for U.S. capital punishment as recent votes reveal states divided on life and death issue Comments Feed Four men allegedly kept captive in bare Houston ‘dungeon,’ malnourished and ‘almost invalids’ Rehtaeh Parsons law: Report suggests it should be illegal to distribute intimate photos of someone without their consent alternate alternate National Post | News WordPress.com [;loc=top;sz=728x90,960x86,970x250;tile=1;blog=world;nk=print;pr=np;ck= news;sck=world;aid=339945105;author=jbrean;cinf=united-states;cinf=jame s-liebman;cinf=capital-punishment;cinf=carlos-deluna;cinf=dzhokhar-tsar naev;tag=kimberly-lagayle-mccarthy;page=story;dcopt=ist;ord=971776?] National Post IFRAME: //www.facebook.com/plugins/like.php?href=http%3A%2F%2Fwww.facebook.com% 2Fnationalpost&send=false&layout=button_count&width=150&show_faces=fals e&action=like&colorscheme=light&font=arial&height=21 * Home * Financial Post * News * Comment * Personal Finance * Investing * Tech * Sports * Arts * Life * Health * Homes * Driving * Classifieds * Subscribe * News * World * Israel & The Middle East [;loc=top;sz=120x90;tile=2;blog=world;nk=print;pr=np;ck=news;sck=world; aid=339945105;author=jbrean;cinf=united-states;cinf=james-liebman;cinf= capital-punishment;cinf=carlos-deluna;cinf=dzhokhar-tsarnaev;tag=kimber ly-lagayle-mccarthy;page=story;ord=971776?] World TRENDINGIce storm | BlackBerry | Ashley Smith | Rob Ford | Lotto 6/49 numbers | Holiday Gift Guide | Canada Post | Mandela | Nigella Lawson | Mike Duffy | Nigel Wright | UFC Tide may be turning for U.S. capital punishment as recent votes reveal states divided on life and death issue [e9bf315d6af23cb2ad26d622d9eb0e5a?s=34&d=mm] Joseph Brean | July 19, 2013 3:33 PM ET More from Joseph Brean | @JosephBrean Carlos DeLuna was executed allegedly in place of someone else in Texas in 1989, a report out May 15, 2012 says. * * Twitter * Google+ * LinkedIn * Email * Comments * More * Tumblr * Pinterest * Reddit * Digg * FarkIt * StumbleUpon Lawyers for Dzhokhar Tsarnaev applied this week to add a death penalty expert to his defence team, in expectation the United States will seek capital punishment for the accused Boston Marathon terrorist. Prosecutors in Ohio, meanwhile, are still deciding whether to seek the same for Cleveland kidnapper Ariel Castro. Texas last month gave a lethal dose of pentobarbital to Kimberly Lagayle McCarthy, 52, for the 1997 robbery and murder of her neighbour, Dorothy Booth, 71, a retired psychology professor. The crime was so brutal that, after asking for a cup of sugar, McCarthy attacked Ms. Booth with a knife and a candelabra, and cut off her finger to steal her wedding ring. HO / AFP / Getty Images The crack addict and former wife of a founder of the radical New Black Panther Party was suspected in two other deaths. She became the 500th person to be executed in Texas since 1982 (the 502nd was carried out Thursday), six years after the U.S. Supreme Court reinstated capital punishment after a four-year legal moratorium. Since then, America has become an outlier among industrialized nations: it is the only executioner in the New World, alone with Japan in the Group of Seven and Belarus in the Organization for Security & Cooperation in Europe. Public support for capital punishment remains strong, solidly 60% in both the U.S. and Canada, which abolished it in 1976, and came within two dozen House of Commons votes of reinstating it in 1987. But there are signs this modern period of American justice might not last. In March, Maryland became the most recent of five states in six years to abolish capital punishment. What these votes have revealed is a country formally divided, state against state, on a life and death issue. AP Photo /Tony Dejak Virginia, Ohio and national leader Texas are lined up against New York, New Mexico and Michigan, with California unsure where to stand, as it curiously registers death sentences but does not carry them out. Only nine states used it in 2012. It was 13 the year before. The national tally is 32 with, 18 without, and closing. “I think what’s taking place is a gradual movement away from the death penalty that now has, by almost any measure, made it into an institution used by a minority of the population in a minority of the counties,” said James Liebman, professor of law at Columbia Law School in New York. National Post Graphics “But the counties that are using it are sticking to it, and the question really is how long the majority in the U.S. will continue to be prepared to subsidize the use of the penalty by the minority.” About half of Americans live in a jurisdiction that does not execute. Just one county in 10 returned even a single death sentence over a given year, and only 1% did so at a rate of more than one a year, according to research by Robert Smith, assistant professor of law at the University of North Carolina Chapel Hill. What this reflects is the geographical pattern of the American death penalty, a lens through which its legal vulnerabilities are being targeted. Places like Duval and Clay counties in Jacksonville, Fla., shine especially brightly from this angle, he said. For instance, out of the 406 inmates waiting on Florida’s death row, 60, or about 15%, were convicted in Duval County. “As everywhere else in the country is getting better, they’re getting worse,” Prof. Smith said. Others include New Orleans, he said, where being charged with a downtown murder at the state level makes the death penalty unlikely, because a jury will be drawn from areas with high African-American populations, which are disproportionately opposed to it. But if the charge is taken up by federal prosecutors, the jury pool widens into the suburbs, and execution becomes far more likely. Prof. Liebman said the counties responsible for this trend are characterized by parochialism and libertarianism. They are “pockets” that “simultaneously resist the idea of government control … and feel under stress from outside forces of modernization.” The result is a heightened fear and revulsion at out-of-the-blue stranger crimes. Related * ‘We’re just thinking about…justice’: Texas’s 500th execution draws victim’s friends, family, death penalty opponents * Woman who was youngest person on U.S. death row for stabbing murder released after 27 years in jail * Ariel Castro, the man accused of holding three women captive, pleads not guilty on 977 counts The bombing of the Boston Marathon upended that equation, he says. It made the entire country share in these emotions and feel the threat of strange, unbidden forces. Mr. Tsarnaev, now controversially on the cover of Rolling Stone magazine, has pleaded not guilty to 30 charges, of which 17 carry the death penalty. Handout Massachusetts has not executed anyone since the electric chair deaths of two gangsters in 1947. The penalty was abolished for state crimes in 1984, in a legal decision that found it was unfairly applied only to those accused who pleaded not guilty. However, the Marathon bombing is a federal case. “The man deserves to die if he’s found guilty,” said John DiFava, chief of the Massachusetts Institute of Technology police force, outside the Boston courthouse after the plea. His officer Sean Collier, 27, was killed during the police manhunt. “He’s guilty of killing other people. He’s guilty of inflicting hurt on other people. Where does it stop? We let him live at our expense, for the rest of his life? I’m sorry. He deserves the death penalty.” The decision of Eric Holder, the U.S. attorney general, whether to seek it will be a strict and cautious one based on objective law, Prof. Liebman said, “but I still think that underneath it all, they are definitely going to be responding to the national sense of violation and unpredictable threat from these outside forces.” According to the Death Penalty Information Center, at least 142 Americans have been sentenced to death, then exonerated since the 1970s, either by acquittal, pardon or dismissal of charges. If you think of how do you get to abolition, you can never possibly get to it through a legislative route, not in our lifetime “If you think of how do you get to abolition, you can never possibly get to it through a legislative route, not in our lifetime. We’re not going to see places like Texas or Alabama [vote to abolish the death penalty],” Prof. Smith said. The likeliest route, he said, is for the Supreme Court to use the same analysis by which it banned death penalties for juveniles, by recognizing it is unjustly applied in practice, confined to a narrow cluster of counties, disproportionately given to people with low IQs, addictions and histories of abuse. Some may even be innocent. The executed innocent remains the prosecutor’s greatest possible failure and the most compelling martyr for abolitionists. As Antonin Scalia, the U.S. Supreme Court’s long-serving staunch conservative, once famously said, there has not been “a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred … the innocent’s name would be shouted from the rooftops.” AP Photo / Pat Sullivan, File There is reason to believe that is no longer true, if it ever was. Cameron Todd Willingham, executed by Texas in 2004 for the deaths by arson of his three children, is a primary candidate, now much of the expert evidence that convicted him has been revealed as unscientific. “There are, right now, across the country, probably 150 cases … where there is testable DNA, never tested, that could be used to confirm or disconfirm the accuracy of the conviction and execution,” said Prof. Liebman. “We’d get an error rate.” Those tests cannot be conducted, however, because forensic evidence, unlike documents, remains in control of police and prosecutors, the very people who stand to lose by the revelation, Prof. Liebman said AFP PHOTO/Fanny CARRIER Rev. Carroll Pickett has first-hand experience with final justice. He attended Texas’s first modern execution and 94 more until he retired in 1995 as chaplain of the Huntsville prison. He has since become a well-known death penalty opponent and author. “I know for a fact that I watched four innocent men being killed by the state of Texas, and many more men die who should never have been sent to the chamber,” Rev. Pickett wrote. “I’ve calculated that of the 95 some 35 were ‘fall partners’ — that is, there were two or more people involved in the crime and they were not the one who pulled the trigger.” One of these four innocents, he and others believe, was Carlos DeLuna, who called Rev. Pickett “daddy” before he died and is the subject of Los Tocayos Carlos (The Wrong Carlos), a new academic analysis by Prof. Liebman in the Columbia Human Rights Law Review. DeLuna was convicted for the 1983 stabbing death of Wanda Lopez, a gas station attendant in Corpus Christi. “We believe we’ve proved beyond a reasonable doubt that Texas executed Carlos DeLuna for a crime that was actually committed by another man named Carlos Hernandez,” Prof. Liebman said. “We are shouting this from the rooftops as best we can.” National Post jbrean@nationalpost.com Facebook Find National Post on Facebook * * Twitter * Google+ * LinkedIn * Email * Comments * More * Tumblr * Pinterest * Reddit * Digg * FarkIt * StumbleUpon Most Popular Prev Next * [bud.jpg?w=140] From 'toque' to 'mickey,' ten Canadianisms that leave other English speakers utterly confused * [wallaceville1.jpg?w=140] High River homeowners could have properties seized if they refuse Alberta's offer to buy flood-ravaged land * [ice-storm-light.jpg?w=140] Thousands of Canadians enter sixth day without power after 'worst ever blackout' * [pjt-icestorm-8.jpg?w=140] Toronto ice storm 2013: Photos show city looking like crime scene with taped-off downed branches * [usb.jpg?w=140] Federal department sought to ban USB drives to curb risk of privacy breaches * [icelandelves.jpg?w=140] Iceland's elves delay massive road project: 'Hidden folk' advocates say construction disturbs elf church * [japan.jpg?w=140] Japanese prime minister angers China by visit to 'war crimes' shrine * [mao-zedong-gold.jpg?w=140] Chairman Mao's old Shanghai home reopening inside luxury mall known as a cradle of 'cosmopolitan chic' * [icestorm2.jpg?w=140] Canadians in three provinces stay in dark five days after ice storm as efforts continue to restore power * [robfordcity.jpg?w=140] Toronto city councillors call for Rob Ford to declare a state of emergency — which would hand over powers to deputy mayor * [wolverine1.jpg?w=140] Alberta researchers tracking elusive and notoriously ferocious wolverines * [noah.jpg?w=140] Mary, Noah ... and Brad Pitt as Pontius Pilate? 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