Running Out of Appeals

By KURT ANDERSEN

After years of legal wrangling, the pace of executions quickens

One way or the other, it was bound to be Alpha Otis Stephens' last night. First he tried killing himself, during his last lonely hours in a cell, by slashing at one wrist with a safety razor. He bled only a little. Then, just after midnight, the state of Georgia undertook to kill him. The 39-year-old murderer, looking scared, was strapped into the electric chair, electrodes fastened to his shaved head and shaved right leg. Superintendent Ralph Kemp counted to three, a volunteer executioner pushed a button, and 2,080 volts, 20 times the charge in a household socket, coursed through Stephens for two full minutes.

But when the electricity was shut off, the prisoner twitched. Then he gasped, and began breathing steadily. Stephens, although apparently unconscious, was not dead. According to Georgia execution procedure, five more minutes had to pass before a pair of prison doctors could examine him and certify that he was alive. "The execution has not been completed," said Kemp rather formally, "and will be reinstituted at this time." The button was pushed again, Stephens stiffened and, at last, stopped moving at all.

These days it takes a botched or otherwise unusual execution to grab public attention. Executions have become so frequent they are usually relegated to a couple of column inches on the inside pages of morning newspapers. From the end of the de facto ten-year moratorium on capital punishment in 1977 through last year, only eleven Americans were put to death legally. Stephens' execution last week, however, was the 20th this year. Not since 1963 have the states executed so many people. Next year the rate of executions seems sure to quicken, perhaps to one a week: by most reckonings, about 50 of the more than 1,400 inmates now on death row will be put to death. "There is no question that the system is gearing up," says Richard Brody, director of the anti-death-penalty project for the NAACP Legal Defense Fund. "But even if 50 people were executed next year, another 250 new convicts would probably take their place on death rows around the country."

Thirty-nine states have death penalty statutes on the books, and opinion polls find an overwhelming majority of Americans in favor of such laws. But the debate continues over whether the death penalty discourages would-be killers and whether it can be meted out fairly. The deterrent effect has never been proved, and the preponderance of expert opinion is skeptical. In the absence of conclusive scientific evidence, the argument has turned more on morality than efficacy. Proponents claim that the death penalty is the only punishment that truly fits the crime of murder; opponents insist that capital punishment is cruel, capriciously applied and unbecoming a civilized society.

Even some advocates of capital-punishment laws are uneasy about actually imposing the penalty. Oregon voters, who abolished the death penalty by referendum in 1964, reimposed it the same way last month, but only in cases involving wanton murderers who would otherwise pose a "threat to society." The Colorado legislature this year passed a tough new capital-punishment statute co-sponsored by State Senator Ray Powers. Even so, Powers declares, "we're just not a death-penalty state like, say, Florida, and this law isn't going to make us one."

So far, the surge in executions has been an exclusively Southern phenomenon: all 20 this year have taken place in the South, eight of them in Florida. "The Sunbelt has always been the most execution-prone section of the country," says Watt Espy, a capital-punishment expert at the University of Alabama Law Center, who cites the area's traditions of frontier violence and eye-for-an-eye justice. But this regionalism will probably end soon. Indiana expects to put at least one person to death during 1985. So do Nebraska, Missouri and Idaho.

The faster pace of executions has been expected. When the U.S. Supreme Court ruled in 1976 that some capital-punishment statutes were constitutional, state legislatures promptly began passing new laws that conformed with the high court's criteria. The murderers convicted under those statutes are only now exhausting their appeals. "The people who are getting executed have already had stays," says University of Florida Sociologist Michael Radelet "And the people on death row are running out of issues for the courts to rule on."

Opponents of capital punishment are refining two lines of legal challenge. Generally they argue that the states' new elaborate sentencing criteria mean that the death penalty is imposed inconsistently and unpredictably. Only a small fraction of capital murderers are sentenced to death, and even fewer are actually executed. Thus, those who do die may be a new species of scapegoat: guilty, but no guiltier than those thousands permitted to live. Says American Civil Liberties Union Lawyer Alvin Bronstein: "All evidence shows the current system to be highly arbitrary."

The opponents' other principal argument concerns apparent racial bias in sentencing. In many states black killers of white people have been more likely to get a death sentence than blacks who kill blacks, or whites who kill victims of either race. The most extensive study in this area, published last year, found that in Georgia during the 1970s, a death sentence was four times as likely in cases where the victim was white. The study found that among scores of factors, none were statistically more important in predicting a death sentence than the victim's race: to juries in Georgia, anyway, a white life seems to count for more.

Alpha Stephens was black, his victim white. Last year Stephens' lawyers filed a brief in the Supreme Court that cited the new study, arguing that Georgia's death penally law was discriminatory in practice. The same study is the basis of three appeals still pending before the federal appeals court in Atlanta. Because of those pending cases, the Supreme Court granted Stephens a stay of execution a year ago. The legal situation seemed unchanged, yet three weeks ago, suddenly and without explanation, the court lifted the stay, clearing the way for Stephens' execution.

The Supreme Court's vacillation can be seen in the various votes of Justice Harry Blackmun. In 1983 he cast the swing vote, agreeing with the majority to stay Stephens' execution. Then he reversed himself three weeks ago, voting with the new majority to lift the stay. Then, just hours before Stephens was executed last week, Blackmun reversed himself once again, voting that a stay should be reimposed because of the unresolved question of systematic racial bias.

The high court's flip-flop in the Stephens case reflects a deep fitfulness over capital punishment. "It takes its toll psychologically, and that spills into nasty memos," says one Supreme Court law clerk. Last year in one dissent, Justice William Brennan was especially bitter. "The court has once again rushed to judgment," he wrote, "apparently eager to reach a fatal conclusion."

Indeed, the dominant conservative faction finds the protracted pursuit of appeals wasteful and diversionary, and has encouraged the lower courts to process the backlog of death penalty cases swiftly. As those backed-up cases now come surging through the courts, however, many observers are concerned that the sheer numbers will cause judicial corners to be cut, and that convicts will go to the executioner having had imperfect legal representation. One of Stephens' main appeals arguments was rejected, for instance, because his lawyers filed the motions late.

Prison officials charged with carrying out executions tend to be ready but hardly eager for the new era. "I'm at peace with myself," says Missouri Warden William Armontrout. "But I wouldn't want to sit here and do a whole mess of these things." He recently had the state's gas chamber repainted, and ordered a fresh stock of cyanide pellets. Armontrout stays friendly with his 28 death-row inmates, even though he may personally execute some of them soon. "I want the fellas to know I do care about them." By contrast, in neighboring Kentucky, preparing for its first electrocution since 1962, the executioner will be a freelance outsider the state hired through a want ad. He will wear black robes and a black hood. But Warden Gene Scroggy has had Kentucky's old electric chair stripped of its black paint and left naturally blond. "I didn't care for black," explains Scroggy. "Black was fine 22 years ago. But society, the way it is today--well, we thought we'd try to brighten it up a bit."

--By Kurt Andersen.

Reported by Joseph N. Boyce/Atlanta and Anne Constable/Washington, with other bureaus

With reporting by Joseph N. Boyce, Anne Constable, other bureaus