In 1977, 2 years after he was convicted of robbing a shoe store and stabbing a clerk to death, 22-year-old Henry Giles sat on death row at Arkansas' Cummins Prison Farm, awaiting his execution by electric chair.
Psychologists had termed Giles "grossly retarded." With an IQ of just 59, it was unclear at the time of trial if the young, black defendant fully understood the severity of the charges against him.
"I really didn't know what the death penalty was," Giles wrote in a letter this year.
15 years later, another black inmate, with a similarly low IQ of just 63, sat on the same death row at Cummins. Rickey Ray Rector had been convicted of murdering 2 men - 1 a police officer - and in 1992, the 42-year-old was awaiting his execution by lethal injection.
But Rector had no knowledge or memory of the crimes he had committed. After killing the officer who had come to arrest him for the 1st murder, Rector shot a bullet through his own brain, essentially giving himself a frontal lobotomy. During his trial, experts testified that he was "severely impaired" and lacked the ability to grasp the concepts of past or future. He was only able to respond to immediate sensations.
"When you'd ask him a question, you could tell he was trying to answer but it was kind of like a skipping record," said John Jewell, 1 of Rector's appellate lawyers. "He'd just keep coming back to the same questions. He couldn't communicate clearly, articulately. I had no confidence that anything he was telling me he actually knew."
Rector's attorneys filed numerous appeals, but the timing was not on their side. Arkansas Gov. Bill Clinton was also running for president, and he was desperate to send the message that he was tough on crime - an issue that had plagued him in previous campaigns. So he decided to take a break from the campaign trail in New Hampshire to fly home to Arkansas, where he would oversee Rector's execution.
From the governor's mansion, where he repeatedly denied pleas for a stay of Rector's execution, Clinton was joined by the same person who, less than 2 decades earlier, was largely credited with saving Giles' life: Hillary Clinton.
The stories of Henry Giles and Rickey Ray Rector - both black, and both severely mentally disabled - have dramatically different endings. Their fates can be attributed partly to the political climate at the time of their scheduled deaths and perhaps partly to when they crossed paths with the Clintons.
But much of their experiences can be chalked up to the completely arbitrary nature in which capital punishment is applied in the United States - an argument that Clinton herself made in the 1970s. That one mentally disabled black man is living, while another was put to death, tells the story of the criminal justice system in a country in which an inmate's race, zip code, jury composition, and attorney competence are all more likely to determine whether he lives or dies than his crime.
Since launching her campaign for the White House last year, Hillary Clinton has become a vocal supporter of comprehensive criminal justice reform. She has had to apologize for aspects of her husband's '3 strikes' crime bill and has backtracked on some of the 'tough-on-crime' language she used during the 1990s.
But there remains one area in which she is reluctant to embrace progressive reform.
On multiple occasions this year, Clinton has expressed her support for the death penalty. She usually qualifies her support, saying she believes capital punishment should be used for certain federal crimes, like terrorist attacks and mass shootings. And she says she doesn't think states should be able to carry out capital punishment because of the arbitrary nature in which it's applied and the possibility for human error. Nonetheless, she still believes that the federal government should maintain a "very limited" use of capital punishment.
"Maybe it's a distinction that is hard to support, but at this point, given the challenges we face from terrorist activities in this country that end up under federal jurisdiction for very limited purposes, I think it can still be held in reserve for those," Clinton said of the death penalty during a March town hall event.
Her support for the practice distinguishes her from the Democratic challengers she's faced throughout the race. It also distinguishes her from the Democratic electorate.
Just 56 % of Americans say they support capital punishment - a 40-year low, down from 78 % just 2 decades ago. And just 40 % of Democrats favor the death penalty, while 56 % are opposed. Being opposed to capital punishment is no longer a handicap for Democratic presidential candidates; in fact, taking a strong stance against the death penalty may even be beneficial in both a primary and general election. And experts say we can expect to see a time in the near future when support for the practice could actually be a liability.
But Clinton has not always supported allowing the government to end lives. In fact, she launched her legal career by representing a death row inmate and arguing the very opposite.
She has never mentioned it on the campaign trail and her campaign declined to comment on her involvement, but as a young public interest lawyer with the University of Arkansas' legal aid project in the 1970s, Clinton - then Hillary Rodham - served as the lead attorney on the Cummins Prison Project, which worked to defend prisoners at the notorious maximum security detention center. The group frequently sent attorneys and students to Cummins to meet prisoners in need of legal help.
One of those inmates was Henry Giles.
There is no evidence that Giles, who was 17 years old at the time of his crime, planned his attack. According to court documents, he was walking down the street in Forrest City, Arkansas when he noticed through the window of a Shoe Outlet that Evelyn Drummond, a clerk, was alone. He then entered the store, wrapped a wire around her neck, dragged her to the rear of the building, and stabbed her twice with a knife. With the store empty, he rifled through the cash register and pocketed the money. Immediately after, he found his brother, Everett, and told him he had done something wrong.
In a signed confession, Giles told law enforcement he killed Drummond because "something came over me to make me do something wrong." But his attorney said Giles had no idea he was signing a confession.
"Those police wrote down what they wanted and I thought they were writing down what I was saying," Giles wrote in a letter. "And I sign it. They didn't give me no lawyer or said anything about one."
He was convicted of murder 4 months before his 18th birthday, and in May 1975, an all-white jury sentenced him to die.
"I never understood any of it anyway," Giles wrote about his trial. "It was something like me against the world ... The hole [sic] court room was white, so you can see how that turn out."
From the start of his trial, questions were raised about his mental competence. Giles had a verbal IQ of just 51, and Dr. Arthur Rogers, a clinical psychologist employed by the Veteran's Administration in North Little Rock, testified that his mental capacity was "quite, quite low, to put it mildly."
"Rogers was of the opinion, from his testing, that Giles had the intelligence of an average seven or 8 year old person," court documents stated. "He said that Giles' knowledge of arithmetic was essentially nonexistent. He thought Giles could count up to 7 and could subtract 1 from 3, but could not figure out change, even from 10 cents for a 6-cent purchase."
The doctor also testified that "Giles was on the borderline between a moron and an imbecile," that he "tends to react immediately without thinking ahead," and that it was very possible he did not understand his right to an attorney or the charges he was facing.
In their motion to appeal, his attorneys wrote that "Henry Giles does not know the degree of the charges against him ... [he] does not know he has been on trial." They also argued that the jury left his age and mental deficiencies off of the verdict forms - both factors that should have lessened his sentence.
Giles' memory of the trial has faded, and in a letter this year he wrote that he never fully grasped what was happening in the courtroom anyway.
"I really didn't understand what the judge said," he said of first learning of his death sentence. "I thought he said that you are sentence to 16 year in prison. That what he sound like to me. I didn't know until the other lawyer told me what he said."
After his sentencing in 1975, the Cummins Prison Project decided to take up Giles' case. As its lead attorney, Clinton orchestrated the effort to have Giles' sentence commuted to life in prison without parole. The project submitted an amicus brief in Giles' appeal before the state supreme court, arguing that because of his mental retardation, killing him would prove the unconstitutional and arbitrary application of the death penalty.
According to the Arkansas Supreme Court's opinion from April 1977, Clinton and her 2 co-counsel claimed in their brief that the state's capital punishment statute "permits arbitrary selectivity in determining whether a defendant charged with a capital felony murder shall live or die."
"Because the imposition of the death penalty is discretionary with the jury... [and] because of the allegedly uncontrolled selective discretion of prosecuting attorneys, trial judges, juries and the governor in choosing which defendants will live and which will die in cases in which the death penalty might be imposed," Giles should not be put to death, they argued.
The Arkansas Supreme Court sided with Clinton's prison project, and commuted Giles' sentence to life without parole. Bill Clinton signed that commutation in April 1977, as Arkansas' attorney general. The current Democratic presidential front-runner's legal work was largely responsible for sparing Giles from execution.
"The brief was credited with saving the life of Henry Giles, a retarded man convicted of murder," wrote David Brock in his 1996 book, The Seduction of Hillary Rodham.
Timing was another factor that spared Giles from the death chamber. At the time Giles narrowly avoided the death penalty, the practice was not politically popular. The U.S. Supreme Court effectively reinstated it just 2 months after Clinton submitted her brief (4 years earlier, in 1972, it ruled that the death penalty qualified as cruel and unusual punishment because states employed execution in "arbitrary and capricious ways" and had imposed a temporary ban). At the time, states were still reluctant to go through with the ultimate punishment.
"We're in no hurry to bring the electric chair out of storage," Arkansas prison spokesperson Tim Baltz told the AP in 1975. "No one is anxious to take a life."
But this was all about to change. After a crime wave in the 1970s stoked people's panic about violence in their communities, Democrats began to fear being labeled as soft-on-crime. In 1986, both parties helped pass legislation creating mandatory minimum sentences for drug offenses - the effects of which are still being felt today.
Clinton herself seemed to be aware of the forthcoming shift in public opinion. Though she led the effort to save Giles from execution, she left her name off the brief that was filed with the Arkansas Supreme Court. She has never explained the decision, but Jeff Rosensweig, a friend of Bill's and a longtime Arkansas criminal defense attorney, pointed out that Bill was running for attorney general at the time and "it would be a problem" for the attorney general's wife to be on the opposite side of a case against the state.
After securing a victory in Giles' case and leaving the Cummins Prison Project, Clinton went on to work at a private law firm. She has since served as First Lady of Arkansas and of the United States, U.S. Senator, Secretary of State, and is now the leading candidate for the Democratic nomination to the presidency.
Meanwhile, Giles, who is nearly deaf and stutters when he speaks, has now spent more than 40 years incarcerated for his crime. "I been in prison longer than I been home, or whatever that is," he wrote this year. Most of the time - except for a few short stays in "the hole," or solitary confinement - he sleeps on one of 50 beds in the north barrack of the East Arkansas Regional Unit, known to the inmates as Brickeys.
"Life in prison is no life," he wrote in one five-page letter of looping script. "You live in fear most of the time. There are time you never know what the next person sitting by you may do. He may flip out anytime. I done seen it happen so many time, it have you on edge, wondering if you next."
Giles said he no longer speaks with any family members and has not received letters or visitors in years. Because of his hearing impairment, he is unable to speak on the phone - the prison has an accessibility machine to help deaf people use the phone, but Giles can't use it because he doesn't know how to type. "In here you have nothing. Know [sic] family, friend, nobody really care about you," he wrote. "But after so long, you know it only you and God."
Though he said he remains grateful that he escaped the electric chair, Giles refers to life in prison without parole as "a death sentence, just a slow death sentence." He writes a lot about what life might be like on the outside. "The world would be a strange place," he said. "Everything is different now." But he emphasizes that any situation on the outside would be better than being locked up.
"If I have to live under bridges, cardboard boxes, that what I do. Or beg for small change. It beat the hell out of coming back to prison."
"I don't feel I would make the same mistakes again," he continued in another letter. "I was still a kid when I came here, never have a life, and I would like to spend the rest of my life a free man. I don't know how much longer I have left but I would like to be free."
As the decades passed and harsh sentencing legislation made its way through Congress, people's perception of the death penalty also changed. By the late 1980s, Americans were obsessed with crime and were willing to go to any length to lock away potential predators.
The Willie Horton ad from the 1988 presidential campaign is perhaps the most memorable moment from that alarmist period. That year, Massachusetts Gov. Michael Dukakis (D) was locked in a close race against George H.W. Bush (R). A few months before Election Day, Bush's campaign released an ad called "Weekend Passes" which attacked Dukakis using the case of Horton, a convicted felon who raped a woman during a weekend furlough program that Dukakis supported.
"Dukakis not only opposes the death penalty, he allowed 1st-degree murderers to have weekend passes from prison," a man's voice booms in the 30-second ad, featuring grainy shots of Horton and Dukakis above bolded words like "kidnapping," "stabbing," and "raping."
During that same election, Dukakis suffered another major blow: When he was asked during a debate what he would do if his wife was raped and murdered, he gave an unemotional response explaining his opposition to capital punishment. It didn't sit well with the public.
Just how important was the death penalty to voters at the time? More respondents to a poll said they would consider a candidate's support for capital punishment when deciding who to vote for than they would his party. Bush ended up defeating Dukakis by a landslide.
|Arkansas Governor Bill Clinton|
Going into the 1992 election, Bill Clinton was well aware of how Dukakis' stance on criminal justice issues had hurt him with the electorate and that dynamic had only become clearer: Polls at the time showed that nearly 80 % of Americans approved of the death penalty. 1 commentator declared, "There is no way the Democrats can nominate somebody against the death penalty and be viable."
As 1 of Rector's earlier attorneys put it: "Poor ole Rickey Rector's timing just happened to be real bad."
In 1981, 29-year-old Rector was at a dance hall in Conway, Arkansas. After getting into a dispute about the entrance fee, he pulled a gun from his waistband and shot 3 men, killing 1. He then ran from law enforcement for several days before deciding to turn himself in to authorities. But when Patrolman Robert W. Martin arrived at Rector's mother's house, where he was waiting, Rector shot him in the jaw and neck, killing him almost immediately.
Rector then walked out of the house, held the gun to his own head, and shot himself straight through his brain. Doctors at Little Rock's University Hospital removed the bullet from behind his ear, and with it, about 3 inches of his frontal brain tissue.
After the surgery, Rector suffered from "gross memory loss" and became "totally incompetent" to assist any attorney who took his case, according to his doctors. Psychologists testified in the ensuing trial that he "seemed unable to grasp either the concept of past or future."
John Jewell represented Rector in his habeas corpus appeal - he was one of many attorneys who took on the case and got to know Rector throughout the appeals process. Jewell said he felt pity and sorrow for his client, but never a deeper personal connection "because there wasn't anyone there to connect to."
Jewell never doubted Rector's guilt. Instead, he had serious doubts about a system in which an all-white jury could condemn a mentally incompetent black inmate to die. His focus was on commuting Rector's sentence to life in prison.
"That's all that we ever asked for - that he not be executed," he said. "Our argument was that he wasn't competent to stand trial to begin with because of the brain damage from when he tried to kill himself."
But multiple judges denied his appeals and Rector's execution was set for January 1992. For Bill Clinton, who had privately wavered on his support for the death penalty, the event was the perfect opportunity for him to look like the tough-on-crime lawmaker he knew the country wanted. With the execution falling right before the New Hampshire primary and Clinton looking to distract voters from allegations about his personal life, Bill and Hillary flew home from the campaign trail in order to be in Arkansas to oversee the execution.
It wasn't the 1st time Clinton scheduled a killing around his own campaigns - his 2 previous executions were both held in an election year, and his next execution would come a few months later - but it was the 1st time a presidential candidate had made a spectacle over an execution.
"Never - or at least not in the recent history of presidential campaigns - has a contender for the nation's highest elective office stepped off the campaign trail to ensure the killing of a prisoner," the Houston Chronicle remarked at the time.
From the governor's mansion, Clinton received multiple calls and pleas from Rector's attorneys for stays of execution and pardons. But he denied all of them.
"There were, I don't remember how many judges that had ruled the same way as Clinton, saying no, I'm not going to pardon him," Jewell said. "It wasn't like he did anything to change the direction of things. He just didn't do anything to stop the execution."
The next year, Jeff Rosensweig, another of Rector's attorneys, would tell the New Yorker that Clinton's decision was likely entirely political. "I think in his heart of hearts Clinton would not have wanted to go through with Rickey's execution," but "he figured he had to," Rosensweig said.
Hours before his death, Rector watched a news report about Clinton on the prison TV. "I'm gonna vote for him. Gonna vote for Clinton," he said to those present. That same execution night, Rector put the pecan pie from his final meal to the side, saying he would save it for later.
Around 9:30 p.m., Carolyn Staley, a close friend of Bill Clinton's, found out that Rector had not yet been killed - medics were having trouble locating a vein and the execution had been delayed. Staley, who strongly opposed the death penalty, decided to call the governor, according to her interview with the New Yorker that year. When Clinton called her back that night, he spoke in a low whisper, saying, "I'm not able to breathe, I'm destroyed."
"It's just awful. Just terrible, terrible," he continued.
At 10:09 p.m. on January 24, 1992, after he yelled out 8 times while medics searched for a vein, Rector was pronounced dead.
There's no way of measuring the impact of the execution on the election, but there were many who questioned why Clinton made the decision he did, when he did.
A New York Times headline the day of the execution read: "Arkansas Execution Raises Questions on Governor's Politics." "The case of Mr. Rector - the 3rd execution to go forward during Mr. Clinton's tenure - raises knotty issues that go beyond general support or disapproval of the death penalty," the article noted, adding that Clinton was playing with the "undeniable politics of death." The Washington Post also questioned Clinton's motives. "It seemed at odds with his progressive, compassionate image, and it appeared to contradict his own acknowledgment that capital punishment was not a deterrent," Richard Cohen wrote in 1993.
Most news coverage of the execution honed in on Rector's mental capacity. In 1986, the Supreme Court had ruled that defendants subject to execution must understand that they are being sentenced to death and why, but at the time of Rector's death, the court had not yet ruled against the killing of the mentally disabled.
"It wasn't the law yet but I think it was probably a case in which people saw there needed to be some changes in the law," Jewell said.
In 2002, a decade after Rector was killed, the U.S. Supreme Court would rule that executing people with intellectual disabilities violates the Eighth Amendment's ban on cruel and unusual punishment. And 12 years later, the court would narrow the state's discretion to determine who has an intellectual disability. Had Rector, a defendant with an IQ of just 63, been sentenced after 2002, it's likely he would still be alive today.
Other legal battles in recent decades have also pointed to the random and arbitrary application of the death penalty. In response, courts have narrowed the cases in which the punishment can be used. In 2005, the Supreme Court banned the execution of juveniles; in 2006 it ruled that DNA evidence can be considered in death penalty appeals; and in 2008 it said that states cannot impose the death penalty for any crimes less than murder. In 2015, just 49 people were sentenced to death, a 50-year low.
While fewer people are being put to death because of the changes in the law, those still facing the punishment are not the worst, guiltiest, or the most threatening. Most executions are concentrated in a few jurisdictions where the penalty is still disproportionately applied. And the non-partisan U.S. General Accounting Office has identified "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty." More than 75 % of executions are for crimes against white victims, and African American defendants receive the death penalty at three times the rate of white defendants in cases where the victims are white.
As more information about the disparities surface and as its use has become more infrequent, public support for the death penalty has also waned. A recent study found that a majority of Americans prefer life without parole to the death penalty and opposition to the practice has reached its highest level in 43 years.
It's also becoming more mainstream for world leaders and politicians to champion its abolition. Last year, Pope Francis called for an end to capital punishment worldwide, declaring its use "inadmissible, no matter how serious the crime committed." And in June of last year, U.S. Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg wrote a dissent in a capital case saying the death penalty may be unconstitutional and calling for a "full briefing" on "whether the death penalty violates the Constitution."
"If trends on the ground continue in the direction that they are going, and new justices to the court either replicate or are further to the left of the current court - which is not a tremendously left-wing court - we think that it's likely there will be a constitutional invalidation of capital punishment," said Carol Steiker, a Harvard Law School professor and expert on capital punishment.
Clinton herself has said recently that she would "breathe a sigh of relief if either the Supreme Court or the states themselves began to eliminate the death penalty." That vision may not be far off - 19 states have already eliminated it, and the Supreme Court may not be too far behind.
The Democratic front-runner's indication that she'd be relieved if the high court resolved the issue likely means that her support for the death penalty is more political than personal, Steiker said. But even her political support seems unnecessary given the current climate on criminal justice issues.
Both of the men who mounted serious challenges to Clinton during the nominating process - Sen. Bernie Sanders (I-VT) and former Maryland governor Martin O'Malley - came out strongly against the death penalty. "The state, in a democratic, civilized society, should not itself be involved in the murder of other Americans," Sanders said last October.
Though the issue didn't come up much during the 2008 presidential election, bipartisan support for criminal justice reform in recent years have once again raised the political profile of capital punishment. President Barack Obama has expressed his conflicted feelings about the death penalty and has called it "deeply troubling" in practice, but he hasn't yet disavowed it entirely.
Which leaves Clinton, who may be the last Democratic presidential candidate to support capital punishment.
Even some conservative leaders are beginning to come out against capital punishment, also citing its arbitrary application. Marc Hyden, the national advocacy coordinator for Conservatives Concerned about the Death Penalty, called the practice "a worthless and albeit expensive and dangerous government program" and "quintessential big, broken government."
Hyden, who used to work for the National Rifle Association, noted that the practice is not pro-life, does not promote fiscal responsibility, and does not represent limited government. "I don't think there's anything limited about giving an error-prone state the power to kill its citizens," he said.
Ben Jealous, the former president of the NAACP who has endorsed and is campaigning for Sanders, suggested that Clinton could quickly fall behind the status quo. He has called the death penalty "the spawn of lynching in our country."
"If Hillary Clinton wants us to trust that she will strong on criminal justice reform, she needs to break with the death penalty and she needs to get back into the progressive mainstream on criminal justice reform," Jealous said in March. "We will see the death penalty abolished in this country in your lifetime."
If Clinton were to win the White House this November, she could very well oversee that historic moment. After appointing another liberal justice to the Supreme Court, it's even more likely that the 9 justices will take up and decide on a case invalidating the practice during Clinton's term.
While Clinton has not been a leader on the issue, experts say they expect she would get there eventually.
"Fewer and fewer Americans are confident that the government can be counted on. And where public opinion goes, political leaders eventually catch up," wrote Frank Baumgartner, a UNC-Chapel Hill researcher who has created a statistical index of public support for capital punishment. His analysis shows public opinion is currently at an all-time low.
"One of the things successful politicians are good at is figuring out in what direction public opinion is going," said Robert Durham, executive director of the Death Penalty Information Center. "And they can either lead public opinion to try to change it, or they can ride public opinion for their own gain."
Henry Giles, for one, is grateful that Clinton took a stand against the death penalty early in her career. Giles recently celebrated his 62nd birthday from Brickeys maximum security prison, the 44th birthday he has celebrated behind bars. Though he called his life sentence a slower death penalty, he remains grateful that he escaped the electric chair.
"Sometime I think back to the old days, and how life been for me," he wrote in a letter. "Yes it hurt real bad. It really make you cry inside. Know [sic] family to call you [since] my mom + dad pass while I was here. The rest of them, god only know where. But you know I give thank to almighty god for every day. That I am able to get up and enjoy life. That really a blessing. Smile."
Source: thinkprogress.org, May 25, 2016