Free the Death Penalty

Debra J. Saunders

12/11/2011 12:01:00 AM - Debra J. Saunders
Imagine a democracy in which key players are committed to making sure that duly enacted laws don't work. These players slow things down. They hire confederates who also want to sabotage the system. Then they shrug and claim that though they want to enforce the law, success is impossible and, besides, prohibitively expensive.

Maureen Faulkner has had to deal with forces opposed to the death penalty since her police officer husband, Daniel, was murdered Dec. 9, 1981. Philadelphia police found Faulkner fatally wounded and Mumia Abu-Jamal with a bullet wound in his chest, his own handgun and five spent shell casings. Four eyewitnesses testified against Abu-Jamal. Yet some famous people, including Mike Farrell and Ed Asner, claimed he was innocent. Supporters charged he was a "political prisoner." Because Faulkner was white and Abu-Jamal was black, they branded the guilty verdict as the fruit of racism -- even though two jurors were African-American.

You may have seen the photo of the officer's widow hugging the police commissioner after Philadelphia District Attorney Seth Williams announced that he would drop efforts to carry out the jury's death sentence. You may have read that Williams did so with the blessing of Maureen Faulkner.

What you may not know is that Faulkner agreed with Williams because she lost faith in the criminal justice system. "The disgusting reality with the death penalty in Pennsylvania is that the fix is in before the hearings even begin," Faulkner explained in a statement. Federal judges, she added, "are the fixers."

In 2001, a federal judge upheld Abu-Jamal's conviction but threw out the death sentence because the 1982 jury did not adhere to a 1997 interpretation of a 1988 appellate ruling. In 2008, the 3rd U.S. Circuit Court of Appeals upheld the ruling. The U.S. Supreme Court told the 3rd Circuit to reconsider. Upon reconsideration, in April the 3rd Circuit stuck with its original outcome. Williams and Faulkner agreed that there was little point in pushing for a second death penalty hearing.

In California, it's the same story. In February 2006, U.S. District Judge Jeremy Fogel stayed the execution of Michael Morales because the judge believed there was less than a 0.001 percent chance that the man convicted of bludgeoning, knifing, strangling, raping and killing 17-year-old Terri Winchell would feel pain under California's three-drug lethal injection protocol.

In April 2008, the U.S. Supreme Court upheld Kentucky's three-drug protocol. In February, the 9th U.S. Circuit Court of Appeals upheld Arizona's lethal injection process. Arizona resumed executions. Yet in California, there is only delay. A different federal judge wants a review of new procedures designed to make California's lethal injection even more humane. The new timetable would delay California's death penalty until at least September. And then, who knows?

"California's execution protocol is equal to or better than those already approved by the U.S. Supreme Court and the 9th Circuit," Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation noted last month. "There is no legitimate basis for further delay."

And: "If the judges wanted these cases to go forward, they could go forward."

The worst of it is that it doesn't matter if juries found defendants guilty of capital murder. It doesn't matter if voters approved their state's death penalty law. It doesn't matter if the U.S. Supreme Court has upheld states' capital punishment protocols. As long as there are judges and politicians willing to undermine the appellate process, capital punishment opponents don't have to win at the ballot or in front of the nation's top court to beat the death penalty.

And as long as the media don't challenge dubious claims of a convicted killer's innocence, the delay tactics may even seem benign. But Maureen Faulkner knows otherwise. Her family lived through a three-decade ordeal as the "free Mumia" crowd lionized a cop killer. Now she's had enough.

As she wrote last week, "should the jury decide on a death sentence again as they should, we would then start the whole decades-long appeals process over again, and we will be forced to repeat the past 30 years as if they never happened."