Law.com
©2001 Law.com

Selective Execution 
America doesn't have a single death penalty. It has thousands. And each is as arbitrary as that of Danville, Va. 
Nathan Koppel
The American Lawyer 

September 18, 2001 


On April 27, John Langley, 43, was found dead at the Innkeeper Motel in Danville, Va. A resident of North Carolina, Langley had come to Danville to do construction work. According to a police statement, he died as a result of blows to the head. 

Shortly after the crime, a Danville grand jury indicted Christopher Emmett for killing Langley and robbing him of $100. Emmett, a former co-worker of Langley's, will stand trial later this year in Danville. The charge is capital murder: If convicted, Emmett will be sentenced to either death or life without parole. 

In theory, Emmett stands no greater chance of a death sentence in Danville than he does in, say, Danbury, Conn., or Denver -- the Langley crime and the evidence linking Emmett to the crime should be the sole determinants of a death sentence. But the death penalty doesn't work that way. Venue matters. And Emmett is not being tried in the most favorable venue. 

Critics have long railed against the capriciousness of the death penalty. In 1972 the U.S. Supreme Court struck down capital punishment on the ground that it was arbitrarily enforced. Jurors targeted defendants for execution just because they were poor or members of minorities, the Court concluded in Furman v. Georgia

Justice Potter Stewart found capital punishment so random and "freakishly imposed" that he likened it to being "struck by lightning." In response to Furman, most of the 38 states in which the death penalty was used passed statutes that purported to offer more guidance as to who should qualify for capital punishment. The Supreme Court was so impressed with these so-called "guided discretion" statutes that it reinstated the death penalty in 1976. 

Twenty-five years later, however, the death penalty is still fundamentally arbitrary, for a reason that guided discretion does not address: It is locally enforced. The federal government may be back in the business of capital punishment, but, by and large, the death penalty remains the province of cities and counties. The Commonwealth of Virginia, for example, has 136 criminal jurisdictions, many with fewer than 10,000 people. Prosecutors, judges, and juries in each jurisdiction have almost unfettered discretion to decide which murder defendants will live and which will die. The result: We don't have one death penalty in this country, but thousands, each as idiosyncratic and flawed as the jurisdiction that administers it. 

Witness Danville. The southern Virginia town of 50,000 is home to a conservative, deeply religious citizenry, an often anemic criminal defense bar, and, most significantly, William Fuller III, an aggressive veteran prosecutor who has sent more men to the executioner than some states. Danville has executed men who would likely still be alive if they had committed their crimes as close as 30 miles away. Not coincidentally, only black men have been sentenced to death in Danville, the self-styled "Last Capital of the Confederacy." 

It's a bleak picture, though it's starting to blur. In the past four years, Fuller has pulled defendants off death row whom he previously prosecuted. It's not clear whether he has moderated his views on his own or been forced to mellow by vigilant appellate lawyers. In either event, the détente should offer Christopher Emmett little solace. 

Danville traveled a long and tortured road on the way to becoming a place that could lay claim to the title Death City, USA. Nestled in the foothills of the Blue Ridge Mountains, with a wide river coursing through it, the town was once a bustling textile and tobacco hub. At the turn of the 20th century, massive tobacco warehouses sprouted up in the center of town, and business magnates erected "Millionaires Row" -- a one-mile expanse of Victorian and Edwardian mansions along Main Street. Walk down a certain stretch of Main Street on a day when the dogwoods are in full bloom, and it's still possible to conjure Danville's glorious past. 

A darker past haunts the town. In the 1960s, nearly every square inch of Danville was segregated. When civil rights demonstrators took to the streets, city leaders deputized garbage collectors to attack them with billy clubs. Firemen turned high-powered hoses on protesters, and the police even broke down church doors to get at civil rights leaders. 

On July 12, 1963, Martin Luther King came to town to rally the troops. "I've seen some brutal things," he told them, "but seldom have I heard of a police force as brutal as the police force in Danville, Va." Vestiges of the Old South remain in Danville, like the Confederate flag that flies on the lawn of the city museum, a structure that was the last home of the Confederate government in 1865. 

Blacks in Danville have escaped Jim Crow, but they now face another forbidding enemy. Cocaine and crack arrived in Danville in the 1980s and quickly took root in the town's large, ghettoized black community, which currently accounts for 40 percent of Danville's population. T. Neal Morris, Danville's chief of police, stresses that drugs cross racial lines in town, but concedes that they have a special hold on the young black population. Morris has flooded black neighborhoods with police officers, but he realizes that it's futile: "If we put a dealer out of business one day, a week later someone else appears down the block." 

The emergence of drugs has literally changed the complexion of crime in Danville. "Back in the 1960s, all we ever dealt with were professional burglars, and most all of them were white," says Fuller, who worked as an assistant prosecutor in the '60s, before being elected chief prosecutor in 1969. "The murders that we had in those days were all domestically related or somebody who had too much to drink at a nip joint ... . Drugs changed all that." In the 1980s, cocaine introduced Danville to a new, more menacing type of criminal -- the type who committed combination murder-robberies. "[Danville] was not used to convenience store clerks and people being held up in their own place of business or murdered in their homes," says Fuller. "That was just [unheard of]. 

Many cities have seen the same evolution in crime; what distinguishes Danville is its full-throttle response. Led by Fuller, Danville has sent a steady stream of thieving murderers to death row. Fuller secured his first death sentence in 1983, against Dana Edmonds, who was convicted of robbing and murdering a Danville grocer. Edmonds would serve as a prototype for future Danville capital murder defendants: He was black, raised in abject poverty, and a chronic drug user. After successfully prosecuting Edmonds, Fuller would, between 1983 and 1997, ensnare eight more death sentences, against seven black defendants. (One defendant received two death sentences.) Every time he sought the death penalty, he got it, though a trial judge reduced one of the death verdicts to two life sentences. 

Fuller's eight death sentences are incredible, given that he represents a town of 50,000. From 1973 to 1995, death penalty states averaged 3.9 death sentences per 100,000 of population, according to a Columbia University study released last year. During that period, Fuller's record stood at more than 400 percent of the national rate. From 1978 to 1997, Danville had the highest per capita death sentence rate in Virginia, according to a study released last year by the American Civil Liberties Union of Virginia. And it's not as if Danville is a particularly violent town. Its per capita murder rate is about average for Virginia. Danville, it seems, is just a particularly punitive town. That fact is underscored by the ACLU study, which compared the number of death sentences in each Virginia jurisdiction to the number of crimes eligible for the death penalty. From 1978 to 1997, nine of the 23 capital crimes in Danville, or 39 percent, drew death sentences. The other Virginia jurisdictions, on average, handed down death sentences in just 5 percent of their capital cases. 

In one sense, Danville is an anomaly. But statistical anomalies pervade America's death penalty system. And that is largely because local prosecutors are the gatekeepers of many different systems. In Virginia, 20 types of murder qualify as capital murder, including murder in the commission of a robbery and murder of more than one person in the same act. But prosecutors aren't required to send capital murderers to death row, and some never do, because either they don't believe in capital punishment or they just don't want the hassle and scrutiny that comes with death penalty cases. Other prosecutors, meanwhile, reserve capital punishment for the worst of the worst offenders -- those, for example, who kill two or more people. Fuller represents a different type of prosecutor. 

Lithe, with thinning gray hair, the 68-year-old Danville prosecutor announced in June that he would run for his ninth consecutive term in office. It's almost certain that he won't even draw an opponent. Fuller is enormously popular in his hometown, because he is seen as tough and relentless. An avowed workaholic, he is married but has no children and few hobbies. Target shooting with pistols, he says, is about the only thing that takes his mind off work. Fuller approaches his job in a uniquely uncompromising fashion. He rarely offers plea bargains, for example, because he views them as a crutch for lazy prosecutors who don't want to do the work that it takes to get stiffer sentences. And he generally keeps a "closed file," as contrasted with the style employed by many prosecutors, who openly share all of their evidence with opposing counsel. These tactics enrage local defense lawyers. 

"A lot of us criminal defense attorneys complain that [Fuller has] no sense of proportion," says Danville's J. Patterson Rogers III, a 30-year veteran of the defense bar, who re-enacts Civil War battles in his spare time. "He prosecutes jaywalking to the utmost." 

Fuller's trademark vigor was on full display earlier this year during an interview in his cozy storefront office. He agreed to talk only after months of requests, and the interview started haltingly. He suggested that certain appellate lawyers -- the ones who have criticized him for years about his death penalty prosecutions -- were behind this article. And he warned that he was prepared to take out a full-page ad in The American Lawyer to set the record straight. (It's a practice he has used repeatedly over the years in the local paper to criticize lawyers, defendants, and even a probation officer.) In time, though, the prosecutor settled into a fervent defense of his death penalty record. 

Fuller's M.O. in capital cases is straightforward: If a case technically qualifies for the death penalty, and he has clear evidence against a defendant, he goes for it. In the absence of any problematic evidence, Fuller gives capital defendants little quarter. His strict approach is informed by his understanding of history. Fuller taught American political history at Averett University in Danville before attending law school, and his office is decorated with portraits of Abraham Lincoln and George Washington, and a framed print of the Gettysburg Address. "In our system of government," says Fuller, "the [state] legislature is supposed to legislate, and courts are supposed to interpret [the law], and I'm supposed to apply the law faithfully." 

The prosecutor, however, is not merely the good soldier that he purports to be. He has pursued the death penalty doggedly in part, he admits, because of his distaste for the state's parole laws, which he used to regard as too liberal. (They have since been made much stricter.) His death penalty record is thus a product of his distinct worldview, as much as he may wish it otherwise. "These cases really tear at me," he says. "I'm not some cold-blooded person who isn't bothered by this." 

Fuller began his capital run in 1983, by prosecuting Dana Edmonds for killing a Danville grocer and robbing him of about $40. After Edmonds, Fuller secured seven more death sentences: 

In 1984, he won two death sentences against Johnny Watkins, who was convicted of the robbery-murder of two convenience store clerks, a week apart, in 1983. Watkins was executed in 1994. 

In 1986, Terry Williams was sentenced to death for robbing an elderly man and killing him with a gardening mattock. Williams remains in prison. 

In 1988, Ronald Watkins, Johnny Watkins' brother, was sentenced to death for robbing and murdering a small business owner. He was executed in 1998. 

In 1990, Fuller secured a death sentence against William Saunders, for killing and robbing someone during the course of a drug buy. Saunders remains in prison. 

In 1993, Fuller prosecuted Calvin Swann for robbing and murdering a man in his home. Swann is now in prison. 

And, in 1997, Fuller tried his last death case against Percy Walton. Walton was sentenced to death for robbing and killing three people in a Danville apartment complex. Walton is still on death row. 

Many of these Danville defendants were victims of Potter Stewart's "lightning" in a manner that the Supreme Court has not addressed: venue. Simply put, they would have fared better in more liberal jurisdictions. In Richmond, Va., for example, prosecutor David Hicks reserves capital punishment for the "monsters," whom he defines as killers with multiple victims. Someone who robs and murders a convenience store clerk wouldn't likely qualify, he says, even if the criminal had a history of violence and killed his victim in a depraved fashion. "I haven't agreed with some of the death sentences in Danville," Hicks says. 

In Norfolk, Va., meanwhile, prosecutors eschew the death penalty, because jurors are reluctant to impose it, says Robert Frank, a Norfolk prosecutor for 10 years before he switched to defense work in 1991. And in Roanoke, Va., a city of 100,000, both jurors and prosecutors are wary of capital punishment, says Steven Mahar-Milani: During his stint as a Roanoke public defender from 1990 to 2000, Mahar-Milani says that prosecutors sought the death penalty against only one man. That man had killed five people, but the jury still didn't sentence him to death. Says Mahar-Milani: "The conventional wisdom is that juries won't give death sentences in Roanoke." 

In the final tally, Percy Walton and Johnny Watkins, who each killed two or more people, might have been sentenced to death wherever they were tried. The other Danville defendants were likelier casualties of venue -- especially Dana Edmonds and Ronald Watkins, who were executed in 1995 and 1998, respectively. Edmonds killed the Danville grocer by hitting him on the head with a brick and stabbing him in the back of the neck. Watkins killed a young man who ran a package supply store by stabbing him seven times in the upper back and slashing his throat. 

The murders were unspeakably brutal, but the defendants were not wholly undeserving of some leniency. Watkins, for example, had as a child been repeatedly beaten by his father with lead-filled nightsticks, bed planks, broom handles, and extension cords. Desperate to escape the abuse, Watkins ran away from home at a young age and attempted suicide by ingesting a combination of drain cleaner, bleach, and rat poison. 

Edmonds was raised in dire poverty by parents who were severely limited both emotionally and intellectually, according to a psychiatric report, and he was diagnosed with an I.Q. of 73. "This was a kid who had borderline intelligence at best," says Edmonds' appellate lawyer, Carl Nadler, who works in the Washington, D.C., office of Chicago's Jenner & Block. "It was your basic, simple homicide, without a great deal of cruelty in the grand scheme of homicides. If there are any homicides where we won't impose the death penalty, that would seem one that would qualify." 

Further tarnishing the Edmonds and Watkins executions, the defendants received representation that was mediocre at best. Capital defendants have the right during the sentencing stage of a trial to present any mitigating evidence -- for example, a history of abusive parenting. But Watkins' trial lawyer didn't argue any mitigating factors, and he turned almost prosecutorial in his closing argument. "The Ronald on the street is a monster. I can't deny that," he told the jury. 

In the Edmonds case, U.S. District Judge James Turk ruled that Edmonds' trial lawyer was "objectively deficient" and that he had a "blatant conflict of interest," because he represented Edmonds at the same time that he represented a prosecution witness in another case. Turk reversed the conviction, but it was reinstated on appeal because it was determined that Edmonds had waived his right to object. 

Whether or not Edmonds and Watkins deserved to die obviously raises myriad moral issues. But, at the very least, they deserved the same level of due process typically accorded capital defendants elsewhere in Virginia and the rest of the country. 

Fuller makes no apologies for his record. Danville is a law-and-order town and, as prosecutor, Fuller says, he has a clear mandate to be tough on crime. His adherence to that mandate, and his diligence in seeking the death penalty, he adds, have kept him in office and have kept Danville a relatively peaceful place. Richmond, in contrast, is a hotbed of murder, due in part, Fuller suggests, to its relatively lax approach to capital cases. In the 1990s Richmond's per capita murder rate ranged from two to four times that of Danville's. Danville should enjoy the sovereign right not to become another Richmond, says Fuller. His passionate defense of the role of regionalism in the application of capital punishment is compelling, yet there is some sophistry to it. 

The prosecutor admits that he has doubts about whether the death penalty really has any deterrent effect. In fact, studies have shown that it doesn't, which is hardly surprising, given that it varies so widely from town to town. Would-be killers would have to be incredibly astute to handicap the chances that their contemplated action might provoke a death penalty prosecution. If you were to drive just 30 miles west of Danville, for example, you would land in Collinsville, Va., the seat of Henry County. In terms of criminal justice, Collinsville is a million miles from Danville. From 1978 to 1997, there were 24 capital crimes in Henry County (pop. 56,000) -- one more than in Danville -- but not a single death sentence. 

Danville's relatively aggressive approach to the death penalty is troubling because it compounds the racial and economic bias that the Furman Court tried to eradicate. It's poor blacks, exclusively, who have borne the brunt of Danville's hearty appetite for capital punishment. No white has ever been sentenced to death in Danville since it first started executing people in 1890. And the same sort of racial disparities exist nationwide -- Danville differs from most other jurisdictions only in degree. 

Fuller's own hands are clean on the race issue. Since Virginia reinstated the death penalty in 1977, only one white defendant has qualified for the death penalty, and his case was a dud -- he killed the victim, an acquaintance, in the course of a drunken brawl and took only $1 from him. From 1975 to 2000, blacks, who make up 40 percent of Danville's population, were charged with 85 percent of its murders. Obviously, the murderers deserve most of the blame for this lopsided statistic. 

But one would have to be incredibly shortsighted to overlook Danville's complicity in its all-black death row. Danville's checkered civil rights past has kept blacks second-class citizens. Look at Danville's criminal justice system itself: There has never been a black prosecutor or a black police officer above the level of lieutenant, and Danville did not appoint its first black judge, Dale Wiley, until 1999 -- and his jurisdiction is limited to juvenile and domestic matters. Blacks, meanwhile, have been grossly underrepresented in the jury box in most of the death penalty cases that Fuller has tried, largely because they are underrepresented on the town's voting lists. 

Danville defendants have been particularly harmed by racially skewed juries. It's a common complaint among Danville defense lawyers that local juries don't like to hear excuses from defendants. "Jurors here are working-class," as one defense lawyer puts it. "They are getting paid seven, eight, nine dollars per hour at a plant, and they are penalized for being late for work. So they have no pity for stories about how a defendant was beaten when he was 10." Danville's capital defendants have thus faced a double whammy: conservative-minded juries who also, by and large, reside on the opposite side of the town's deep racial divide. 

Our criminal justice system leaves it to each jurisdiction to wrestle with its racial skeletons as it sees fit. In Martinsville, Va., 26 miles from Danville, the death penalty was not imposed from 1977 to 2000, owing in large part to the "Martinsville Seven" incident, say local lawyers. On a single day in 1951, seven black Martinsville men were executed for the alleged rape of a white woman. "That had such a distasteful effect on the community," says a Martinsville defense lawyer, "that there were no [death penalty] prosecutions after that." 

Recently, though, Martinsville's new black prosecutor broke the streak. Fuller expresses sympathy for blacks' historical mistreatment in Danville, yet says he is not about to practice prosecutorial affirmative action to try to even the playing field. "I can't be a statistical prosecutor," he says. "I gotta do what I think is right." 

Today, all is quiet in Danville. In the last four years, Fuller has steered clear of the death penalty. He says that he has not had clean enough evidence to go for it. Even more indicative of his transformation, Fuller has yanked three of his previous defendants off death row. The reasons behind the sentence reversals vary, but each recalls Potter Stewart's bolt of lightning. 

Saunders was the first Danville defendant to be sprung from death row. In 1997 Fuller asked George Allen, then Virginia's governor, to commute his death sentence, because, he said, Saunders had established a model record on death row. Saunders would not have gotten the death penalty in the first place, says Fuller, but for an unusual delay, which precluded the trial judge from sentencing Saunders until almost six months after the verdict. While waiting to be sentenced, Saunders got into trouble in jail -- he set his cell on fire and had several altercations with guards -- which catapulted him into death penalty territory, explains Fuller. The prosecutor says he has always felt uneasy that the delay played such a crucial role in that death sentence, so he was happy to join Saunders' appellate lawyer in requesting clemency. 

Saunders' appellate lawyer, Barbara Hartung, a Richmond solo practitioner, offers an alternate explanation for why Fuller reversed course. In her appeal, Hartung claimed that she uncovered exculpatory evidence that Fuller had never disclosed to Saunders' trial counsel. Prosecutors have an obligation (known as a "Brady duty," based on the Supreme Court's decision in Brady v. Maryland) to disclose exculpatory evidence. 

U.S. District Judge Robert Merhige Jr. of Virginia scheduled a hearing for the spring of 1997 to investigate Hartung's Brady complaints. Fuller would have had to take the stand at the hearing and answer some tough questions, says Hartung. After Merhige scheduled the hearing, Hartung petitioned Gov. Allen in April 1997 to reduce Saunders' sentence to life. Fuller wrote Allen a letter supporting the petition. Allen commuted the sentence, which obviated the Brady hearing. Hartung implies that the Brady hearing was an impetus for Fuller to join the clemency effort. Fuller denies any Brady violations, and he notes that he told Hartung that he felt that Saunders had deserved clemency well before Merhige scheduled the Brady hearing. "I wasn't worried about a hearing," says Fuller. "That is just a lot of baloney." 

In 1999 Fuller also played a pivotal role in Gov. James Gilmore's reduction of Calvin Swann's death sentence to life without parole. Swann, who was looking for money to buy cocaine, robbed and murdered a man in his home in 1993. At the time of his trial, Swann had spent much of his life in mental institutions. He was deemed competent to stand trial, but, during the sentencing phase, the defense counsel introduced vast mitigation evidence that Swann was insane. "There was a question of whether [Swann] was mentally ill or feigning," says Fuller. "I didn't know what the answer was, but I knew that I couldn't go for a sentence that would result in him getting out again." At the time of the trial, parole eligibility was 25 years. Fuller says that Swann had already been paroled three times prior to his capital murder trial, and that he couldn't take the risk that Swann would get out again. 

In 1999 Swann's appellate lawyers petitioned Gov. Gilmore for clemency on the ground that Swann was insane. Fuller helped this effort by telling the governor that he would not have asked for the death penalty at trial, due to Swann's mental condition, if life without parole had been a sentencing option. (Virginia instituted life without parole in 1995.) Swann's appellate lawyer, John Howley, says Fuller's discussion with the governor played a critical role in the commutation. "It was clear to me that [Fuller] wanted to help us, because he had been criticized over the years for seeking the death penalty disproportionately against blacks," says Howley, a partner in New York's Kaye Scholer. "[Fuller] said he hoped his acts in the case would convince people he is not a racist." 

Whatever motivated Fuller to help secure clemency, the Swann case illustrates Fuller's selective discretion. He follows the state capital murder statute strictly in deciding when to seek the death penalty, because, he says, he does not want to put himself "above the law." But that is precisely what he did in Swann. The state legislature had established parole laws in line with its view of the proper balance between deterrence and rehabilitation. But Fuller considered the parole laws too permissive, so he sought the death penalty, even though he had some doubts about the defendant's mental condition. 

In fact, Fuller repeatedly cites the state's liberal parole laws in defense of his death penalty record. "In most of these capital cases I tried, parole eligibility was 15 years, and we had liberal parole boards," he says, "so you just had to seek the death penalty." Since life without parole became an available option, Fuller says he has felt less pressure to go for the death penalty. If he had to prosecute his former capital defendants in today's strict parole climate, would he still go for the death penalty? Fuller hesitates on one name (in addition to Swann's): Dana Edmonds, who was executed in 1995. "To answer that question honestly," he says, "I'd have to say I don't know." 

Terry Williams is the last Danville defendant to be spared the executioner. His trial lawyer, E.L. Motley Jr., failed to present key mitigation evidence. He never told the jury, for example, any of the following details: When he was a year old, Williams was discovered at his home surrounded by feces and urine; his father regularly tied him to a bedpost and beat him; and his parents had been imprisoned for child neglect. Instead, during sentencing, Motley told the jury: "It is very difficult to get up and ask that you give this man mercy when he has shown so little of it himself ... . And I can't give you any logic or great earth-shattering, moving reason why you should ... . Yes, he'll keep going back and doing wrong, but he will still feel remorseful and still feel terrible about it afterwards ... . The law allows you to decide between the two, life or death. Even if he's shown to be worse than Charles Manson." Motley -- who also represented Johnny Watkins, the Danville defendant executed in 1994 -- was later hospitalized for severe depression and reprimanded by the Virginia state bar for neglecting clients. He did not return a call seeking comment. 

Williams' appellate attorney, Brian Powers, a partner in Washington, D.C.'s O'Donoghue & O'Donoghue, argued on appeal that Motley had botched Williams' case. After 14 years of futile appeals, the Supreme Court finally agreed. In April 2000 it ruled that Williams had received ineffective assistance of counsel and was entitled to be resentenced. 

When the Williams case was returned to Fuller, he realized that he faced certain obstacles. He would have to empanel a new jury for the resentencing, and that jury would have to listen to a taped recording of the guilt phase of the trial. That would pack less punch than had the original live testimony. Williams, moreover, had been a model prisoner since being sent away in 1986. Fuller says that he worried that a second jury might not grant a death sentence. So, in late 2000, Fuller reached a plea agreement with Powers for Williams to serve life without parole. As it stands, Percy Walton, who was convicted of murdering three people, is the last Danville defendant on death row. He is currently challenging his death sentence. 

Fuller's recent turnaround is startling, if somewhat hollow; it came, after all, only with the intervention of lawyers far removed from Danville. Without them, the list of the executed in Danville would certainly be longer. If Fuller wins his race in November, Danville's death penalty will continue to reflect his particular views on criminal justice. If he loses, which is highly unlikely, then the death penalty bar may be set higher or lower. 

Christopher Emmett's life, meanwhile, hangs in the balance. He is the first white Danville defendant in more than 15 years, and only the second during Fuller's tenure, to qualify for the death penalty. Will Fuller feel added pressure to send Emmett to death row and get the race monkey off his back? Fuller insists that race won't be a factor. Fortunately, for Emmett, life without parole will be a factor; the sentence has given birth to a more moderate William Fuller. Still, with history as a guide, Emmett would probably be better off standing trial in Collinsville, 30 miles to the west of Danville, and Chatham, Va., 21 miles to the north. It all makes society's ultimate punishment extremely arbitrary. 

David Hicks, Richmond's prosecutor, believes that states should establish their own death penalty standards. But he opposes extending that sovereignty to counties and cities, because, he says, it leads to inconsistency and, in more aggressive jurisdictions, to a diminution in the value of the death penalty. Capital punishment, Hicks believes, should be reserved for truly heinous offenses. "What's next: We extend [sentencing] sovereignty to neighborhoods? You are killed if you commit a murder on Park Avenue but not on 110th Street [in New York City]?" asks Hicks, a New Jersey native. 

To the extent that the death penalty is allowed, states should draw their capital murder statutes more narrowly -- perhaps, for example, only criminals who have committed two or more murders would qualify. This would give local prosecutors less room to roam, and it would keep the Danvilles of the world -- and there are other death penalty hot spots like it -- in check. The Supreme Court, in Furman, yearned for a colorless, odorless, paint-by-the-numbers death penalty -- with the sole variables being the gravity of the crime and the evidence of the defendant's guilt. Some 30 years later, we're still searching. 




Death Penalty Issues
Truth in Justice