Taking the Guilt Out of the Death Penalty

"As far as I’m concerned, it’s just a job. They’re just a bunch of guys
trying to pay their rent.” --Daryl Holdon

Photo: Ángel Franco/The New York Times

By DAN BARRY

Published: September 9, 2007

NASHVILLE

Daryl Holton shaved his head clean a couple of months ago. He thought he could retain some control in this small way. But he also wanted to save the corrections officers the trouble.

“I wouldn’t want them to leave with a feeling of guilt,” he says, speaking from the other side with his hands and feet shackled. “As far as I’m concerned, it’s just a job. They’re just a bunch of guys trying to pay their rent.”

His head needs to be shaven; his legs, too. That is because, not long ago, he marked an ‘X’ beside a sentence on a document handed to him here at the Riverbend Maximum Security Institution. That sentence read: “I waive the right to have my execution carried out by lethal injection and choose to be executed by electrocution.”

The crimes that Mr. Holton committed 10 years ago are so horrible and sad that it hurts to read even the most dispassionate description: he shot and killed his four children, ages 4, 6, 10 and 12. Two at a time, through the heart, after having them cover their eyes and asking them not to peek.

Was he punishing his ex-wife for obtaining an order of protection against him, as the state suggests? Or, as his defenders argue, was he depressed and temporarily insane, reasoning that his children were better off dead than to be raised by a mother with a history of alcoholism and abandonment?

Wouldn’t you have to be mentally ill to kill your own children?

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“In his mind, he killed his children
out of the highest possible moral reasons,
as odd as that might sound,”
says Kelly Gleason, a defense lawyer.

Now, after all the motions filed in his behalf, often against his will and without his participation, and after the years of speculation about why he did what he did and does what he does, Daryl Keith Holton, 45, of sound body and court-determined competence — a supporter of the death penalty, by the way — is scheduled to be killed by the State of Tennessee on Wednesday morning, one o’clock.

To be electrocuted, by choice: this slender man sitting now in a room as small and stark as a confessional, his darkened teeth in need of repair, his voice raised to be heard through the Plexiglas that separates the free from the condemned. Articulate and wry, he speaks with a deference — If I could; If you don’t mind — that masks the slight condescension of someone experiencing what few can imagine.

The preferred method of execution in this country is lethal injection, based on the educated guess that it is more humane — at least when properly administered. In that context, the electric chair seems a gruesome relic from the last century, an incremental step up from the noose. Old Sparky. Throw the switch and the lights flicker, as warning to us all.

Ten states still permit its use, depending on the circumstances, although Nebraska alone provides for no other option. Here in Tennessee, where the electric chair has not been used since 1960, the law says that if you are sentenced to death for a crime committed before Jan. 1, 1999, you may choose to die sitting up, or die lying down.

“You have a lot of argument nowadays that lethal injection is cruel and unusual punishment, by a number of my neighbors in here on death row — at least by their attorneys,” Mr. Holton says. “To be honest with you, they are both probably effective and painless methods of execution.”

He smiles the small smile of someone sharing an inside joke; it is not a smirk. “I’m using the word ‘probably’ because any evidence regarding that is going to be hearsay,” he says, then adds, “It’s rare that someone lives to tell about” — here a chuckle escapes — “how an execution felt.”

Point taken. But why the electric chair?

“It’s not very intellectual,” he says. “At the time of the commission of the offense, that’s the punishment that was in place. That was the law.”

His answer reflects the strangely ethical code by which he lives, one that may reflect his many years in the Army, or perhaps the external order he needs to corral some internal chaos. He abhors frivolous appeals, and refuses to accept the privileges he has earned as a model inmate. When he came close to being executed last year, he declined a special last meal, and ate what other inmates ate that night: a turkey-and-cheese hoagie.

Kelly Gleason, a lawyer with the state’s Office of the Post-Conviction Defender, sees a sad consistency in his thought process. Ms. Gleason has visited Mr. Holton two dozen times and considers him a friend, even though he counts her among the “well-intentioned do-gooders” who have waged, and lost, various legal battles to save his life.

“I would describe him as a highly ethical, moral person with a rigid moral code, who acts in accordance with that code,” she says. “In his mind, he killed his children out of the highest possible moral reasons, as odd as that might sound.”

Robert Blecker, a professor at New York Law School who supports the death penalty in some cases, disagrees. He has met and spoken with Mr. Holton several times as part of a self-appointed mission to extract remorse from the condemned man. So far his mission, videotaped and audiotaped for posterity, has failed.

“I think he’s not ceding, or seeing, that he committed a monstrously despicable crime,” Mr. Blecker says.

Time is nearly up. Corrections officers begin to hover. Hurriedly, Mr. Holton is asked whether he believes that he deserves to die for what he did. He answers in a way that continues to keep imminent things in the abstract.

“I’m taking myself out of the equation,” he says. “What I would say to you is that someone convicted of four counts of first-degree murder, with the aggravators that were found in my case, the aggravating circumstances — yes, that conviction is worthy of the death penalty.”

As Mr. Holton rises, his shackles chime. He says as he goes, “And good luck in your future endeavors.”

Audio excerpts from Dan Barry’s interview with a death row inmate:
nytimes.com/danbarry.

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Greasing the Wheels on the Machinery of Death

By ADAM LIPTAK

Published: August 20, 2007

Death penalty cases can take a long time. Attorney General Alberto R. Gonzales wants to move things along.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

“A first-year law student could spot this conflict of interest a mile away,” said Elisabeth Semel, the director of the death penalty clinic at the University of California, Berkeley, and an opponent of the death penalty.

The move can only represent Congressional dissatisfaction with the decisions of the dozens of federal judges who have considered the adequacy of state systems to provide death row inmates with qualified defense teams over the last decade.

With one partial exception, they have found that the states are not yet where they should be. (The exception is Arizona, which a federal appeals court said had an adequate system on paper, at least as of 1998, though the court also ruled that the system had not been followed in the case before it.)

Opponents of the death penalty say Congress wants Mr. Gonzales to speak power to truth.

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

There is also some evidence that the law is a solution in search of a problem. In 1996, Congress imposed new time limits for filing capital cases and severely cut back on the kinds of issues the federal courts may consider. That law has had a significant impact, according to a study by Professor Freedman and David R. Dow, a law professor at the University of Houston, to be published next year by the Carolina Academic Press.

Before the 1996 law, death row inmates who filed habeas corpus petitions in federal court succeeded in overturning their convictions or death sentences about 40 percent of the time. According to the study, which looked at the years 2000 through 2006, that number has dropped to 12 percent. And it continues to fall.

“Federal courts now grant relief at a very small rate — far smaller than they would if they had the power to correct significant constitutional violations,” Professor Dow said, “but Congress has already deprived federal courts of their power to grant relief in most cases, even where the court believes that a significant error has occurred.”

These days, federal courts in the generally conservative Fourth Circuit, which covers Virginia and four other states, grant habeas petitions from death row inmates 2 percent of the time. In the more liberal Ninth Circuit, which covers California and eight other Western states, petitioners succeed 35 percent of the time.

The new law was pushed by legislators and prosecutors in Arizona and California, and it is an expression of their frustration with the Ninth Circuit. Elsewhere in the country, the machinery of death is humming along. In Virginia, for instance, people convicted of capital crimes are executed, on average, in seven years.

California, by contrast, seldom executes anyone. It has some 660 people on its death row and has executed 13 people since the United States Supreme Court reinstated capital punishment in 1976.

It is true that the capital justice system is not efficient. But efficiency cannot be the only goal. Accuracy must matter, too.

“The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling,” Professor Dow said. “It will increase the risk that some state executes a person we later find to be innocent.”

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com
/adamliptak.

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