Imagine you lived in a country that provided an example of human possibility for the rest of the world.
Imagine that the fundamental premises of this country praised the inherent beauty, value and dignity of every individual human being.
Imagine that the promise of this country inspired hope in the breasts of men and women everywhere to reach upward for something higher and better than anything they had ever known.
Imagine the future that an opportunity such as this land embodied could create in the hearts and minds of hopeful human beings.
Imagine what could be created out of such a land if nurtured and further inspired by courageous, intelligent, compassionate and hopeful leadership whose view was ever upward, ever outward.
Imagine then this shining star, this limitless opportunity, shunted onto a siding, power wasting, vision fogging, hope diminishing, dreams dying because of the rot of smugness, arrogance, greed, weakness, because of an absence of empowering spirit. Imagine the cancer of leaders without inspiration, of power-mad, self-satisfied, possibility denying rulers who, lost in the excrement of their own frustrations, lack the power of curiosity and the courage of love, choosing instead to bludgeon hope with the mace of fear.
Imagine then the sense of loss, the frustration, the enormous pit of despair that could encompass those who had once known possibility. Imagine the great tide of hopelessness that would appear – the cynicism that would follow – and the negligence that would result.
I ask you to imagine this because it's worm's-eye view, held by some who don't enjoy the security in their lives that so many of us have come to count on. And it seems to me they represent the bottom line, where a principled life separates itself from a constipated, fear-driven world view; it's the line one steps across when choosing to expose the lie that suggests some human beings are immaterial, inconsequential, invisible.
There's a great truth told quite simply in a novel I recently read. The primary character, a cop, says, “Everybody counts or nobody counts.”
A man named Baine Kerr made a very wise observation in another novel about the law entitled “Harmful Intent”:
“In cynical times right and wrong can be hard to sort out. Goodness and truth can seem beyond our reach. But we have the option, the obligation, to put cynicism aside and exercise the public virtues: to find truth, oppose wrong, protect innocence, promote good and do right.”
In support of that obligation, I hope you'll bear with me tonight. There's much to discuss.
Joe G. ltr – 4/9/2001 – “Life comes at us the way it comes, and it cannot be otherwise. As I reflect I come to recognize that we human beings possess something which is at once more terrible and wonderful than all else: the ability to make ourselves and our world better or worse. I sense that humanity as a whole may not have progressed, nor will it meaningfully advance, if not for human beings who resolutely and passionately champion a cause they believe in. So many I've been fortunate enough to encounter during the course of my odyssey epitomize for me the fundamental fact that only by communicating one's realization with passion can the truth, one way or another, break through the fog of complacency that lays thick upon our consciousness as a species. I suppose that is one of our chief duties - to speak out to the best of our ability – maybe quietly and gently, maybe with angry wisdom, maybe with slow and careful analysis, maybe by unshakable public example; but speak out we must if humanity is to remain alive and awake. To abstain in stoical or ironical detachment or to stay dithered in the middle ground is to atrophy.”
The ‘middle ground' won't get us where we want to go.
I was once at an event for a group of attorneys in Los Angeles who work in the inner city, representing people who live in deplorable conditions, helping them assert their rights against exploitive slumlords. A quote from one of the young children they had helped was on a banner in the room. “Mommy,” it said, “does this mean we don't have to live in the rat house any more?” That's a fairly simple, easily understandable message. No one - least of all a child - should have to live among rats. But I asked them to consider another child, as well. Not this one who tugs at our heartstrings, but a child from the same set of circumstances who feels the need for what he perceives as justice and says, instead, “Mommy, I'm going to find the people who made you live like this and make them sorry.”
What happens to that child? Maybe she leaves her rat-infested home and finds her way to a place of hope. Or maybe, if he's already in a place that promises hope but has been robbed of it, he steps across the line and becomes an outlaw, striking out at those in society who, in his mind, have done him – and his mother - harm.
I won't go through the litany; there is enough information around us today to clearly demonstrate that we are failing many of those in our society by deeming them invisible. We compound the failure by forcing them into a system – a school system, a legal system, a criminal justice system, a medical system, a welfare system, in which invisible people suffer invisibly and then, if they misbehave, we destroy them. Unless someone cares enough to pierce the shield of invisibility, the children from rat-infested places, the invisible people whose hearts yearn for justice, implode and do harm to themselves – or explode and do harm in another way.
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So. I appreciate the invitation to speak to you this evening because it's my belief that state killing is not often discussed rationally; in fact, it's too rarely discussed at all. It's a tough subject that frightens and confuses people and isn't often dealt with rationally.
There's not time to examine the issue thoroughly this evening, but I'll give you something of an overview and leave room for questions.
If you believe polls, support for capital punishment has dropped precipitously in the past few years. The more in-depth polls add the option of life without parole and often show support for capital punishment below a majority. That fact doesn't often make the news. Nor is it likely to be acknowledged by so-called 'leaders' who continue to insist that they support state killing because the people want it.
Many Americans don't believe Life in Prison Without the Possibility of Parole actually exists. They think life sentences are a turnstile operation where bloodthirsty killers are sentenced to prison for life only to be turned back out on the streets some years later to do their dirty work again. No one likes that idea, so, believing there is no effective alternative, people make the sometimes not very comfortable choice: to kill.
But this choice becomes state and national policy, so I believe we have to think about it. Of course it's easier if we can just leave the question up to “the experts” and go about our business. But looking at the issue over the last 30 years, one finds that we're not really leaving it up to the experts; we're leaving it up to the politicians.
Over the past three decades political jargon, slick packaging, sales techniques and clever use of the electronic media have distanced us from an awareness of the harm we do by continuing an out-dated and I believe immoral practice - discontinued in every advanced western nation except our own - of putting our citizens to death.
I was taught that killing is wrong. If so, it's at least as wrong for the state to kill in cold blood as it is for an individual to do so in heat. “At least as wrong” because society has an obligation to hold itself to a higher standard - to remember that it not only acts for all, but is also the model of appropriate behavior for its members, particularly its youth. That being so, the cold, dehumanizing, ritualistic killing of those we deem unacceptable teaches that the taking of a human life is permissible if one is in a position of power and is acting in furtherance of a cause believed to be just - a lesson that has been too well learned, to judge by what takes place on our streets today.
Dr. James Gilligan, in his book, “Violence - Our Deadly Epidemic and its Causes,” says, “ all violence is an attempt to achieve justice, or what the violent person perceives as justice... Thus, the attempt to achieve and maintain justice, or to undo or prevent injustice, is the one and only universal cause of violence.”
Now I recognize that many people – doubtless some in this room - believe, in good conscience, that it is appropriate under certain circumstances for the state to take a life. While I disagree, except in the obvious case of national or personal self-defense, I respect your right to come to that conclusion. And I don't mean to suggest that my morality is somehow higher or more “holy” than yours – not at all – rather, I ask only that you examine the issue not on an abstract moral or philosophical plane, but rather look carefully at what a death penalty system truly means in a society such as ours - what it does, who it impacts, who it serves and what our moral obligation is with regard to the mistakes it makes. And, as is the case with any institution designed and maintained by human beings, it does make mistakes.
So now, to those of you – or those you know – who believe that state killing is necessary, just and/or appropriate. Please consider these points:
1) Understand that we kill the innocent.
A death system designed and operated by human beings will make mistakes. I put that in the future tense only because that is the position of the more dedicated supporters of capital punishment, such as Judge Alex Kozinski of the 9th Circuit Court of Appeals. Judge Kozinski says that if we continue on our current path, innocents will surely die. He adds, “...we have constructed a machine that is extremely expensive, chokes our legal institutions, visits repeated trauma on victims' families and ultimately produces nothing like the benefits we would expect from an effective system of capital punishment. This is surely the worst of all worlds. ... a self-defeating tactic” which “will do nothing to insure that the very worst members of our society are put to death.” Kozinski calls for changes that will ensure that “only the most heinous criminals, ...the worst of the very bad” be put to death.
By the same logic the late Justice Harry Blackmun of the U.S. Supreme Court came to a different conclusion. “The death penalty remains fraught with arbitrariness, discrimination, caprice and mistake... From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored - indeed I have struggled, along with a majority of the court - to develop procedural and substantive rules that would lend more than the appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved... I feel morally and intellectually obligated to concede that the death penalty experiment has failed . The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants.”
Refuting both justices' suggestion that it hasn't happened yet, a study by Radelet, Bedau and Putnam, in their book, “Executing the Innocent,” says that up to 1992, 435 innocent people were convicted of capital crimes in this country. Some were exonerated and freed, some died in prison, some had their sentences reduced. 26 were executed. Since the study was completed, more innocent have died. Leonel Herrera was executed in Texas in 1995 after the Supreme Court refused to hear new evidence of actual innocence. In that case, Justice Antonin Scalia argued that innocence was not a Constitutionally defensible principle on appeal. Justice Blackmun, dissenting, called the Court's decision, “perilously close to simple murder.” Jesse Jacobs was later killed in Texas despite the admission of the D.A. who prosecuted him that another did the killing. Jesse Tafero, whose head was set afire as he died in Florida 's electric chair was unable to benefit from evidence presented two years later that destroyed the state's case and freed his co-defendant. You may have heard of Gary Graham (AKA Shaka Sankofa) in Texas , killed by then-Governor Bush without ever having all the exonerating evidence heard in court. The list goes on, but time does not allow.
A while back Supreme Court Justice Sandra Day O'Connor expressed concern about the release of innocents from death row and the likelihood of some being wrongly executed.
In 1998, my organization co-sponsored a conference at Northwestern University Law School that presented 30 of the then 78 men and women who had been tried, convicted and sentenced to death since the reinstatement of capital punishment in 1976, many of whom had spent years on death row - some coming within hours of execution - only to finally be completely exonerated and freed. It was a profoundly moving and very difficult experience, as you can imagine.
And the shock to the system that conference provided – augmented by the development of more sophisticated DNA analyses - has resulted in a virtual avalanche of exonerations. To the point that today the number of those freed from death row is now 117.
How do we give these people back their lives? Kirk Bloodsworth, a former Marine who spent 9 years on death row in Maryland for the rape and murder of a young girl before finally being cleared by a DNA test, said of attempts to put it behind him and start a new life, “It never, ever ends. It never ends. It never ends. It never will be ended.''
Worse, after Gov. Ryan emptied Illinois ' death row, the Chicago Tribune reviewed 88 different cases in which 97 Death Row prisoners were set free . Each release, some would have you believe, suggests that the justice system has corrected itself. But court records indicate that an alternate suspect was identified in dozens of these cases, while police charged a new suspect in just 10 of them. This reflects the reluctance of authorities to admit error and seek new suspects, preferring, as they do, to continue to maintain that the freed individual is the guilty one, while the actual perpetrator remains free to do his will.
Last year Cameron Willingham was executed in Texas for an arson that killed his three children. He steadfastly maintained his innocence. More recently Ernest Willis was freed from death row after the arson investigation that led to his conviction was discredited.
Both convictions were based upon the theory that accelerants were used, indicating that the fires were intentionally set.
Both convictions were based on speculative interpretations of "crazed glass" that was found at the crime scene. The splintered glass was originally believed to be caused by an accelerant spray. However, crazed glass may also occur when cold water that is used to put out a fire hits hot glass.
The deputy state fire marshal, Manuel Vasquez, testified to similar conclusions in both cases.
The convictions were only five years apart (Willingham in 1987, Willis in 1992). Both were appealed to the Texas Court of Criminal Appeals, and both were denied.
In both cases, reinvestigations of the evidence by fire expert Gerald Hurst stated that the burn patterns and residue were consistent with "flash over," a phenomenon unique to electrical fires, rather than arson.
According to the Chicago Tribune , the cases were "nearly identical." Then-Texas deputy fire marshall Edward Cheever has admitted that in the Willingham case "we were still testifying to things that aren't accurate today. They were true then, but they aren't now... We know now not to make those same assumptions." ( Chicago Tribune, December 9, 2004)
2) Please understand that racism taints our criminal justice system and has totally corrupted the machinery of death.
This is not only borne out by every study done privately, but was carefully delineated by the U.S. Congress. The Racial Justice Act, legislation intended to remedy the problem, was defeated in Congress largely because it was feared an unintended side effect would be to effectively end the death system in this country.
Former Supreme Court Justice Lewis Powell cast the deciding vote and wrote for the majority in the infamous McClesky case, which held that although the racial studies then presented demonstrated a significant bias against black people in our criminal justice system, McClesky must still die because he hadn't proven it in his particular case. In his majority opinion against McClesky Powell admitted that the findings presented, if upheld by the Court, would undermine the entire criminal justice system in this country. After his retirement Powell said that upon reflection, out of his entire career, the one vote he wished he could change was McClesky.
I was part of an unsuccessful campaign to get President Clinton, in the last days of his administration, to declare a moratorium on federal executions in the face of the then fast approaching dates of men awaiting death in federal prison. What he did instead was give half a loaf by staying the execution of the first man for six months and punt to the current administration. Our appeal was based on the Justice Department's own study that showed racial, ethnic and geographic bias in the charging of death penalty cases in the federal system. The report showed that of the 675 cases where U.S. attorneys recommended death sentences, only slightly more than one quarter were white defendants. Blacks comprised almost half of those defendants recommended for death, and Hispanics about one-fifth. Today, roughly 81% of the men currently on federal death row are minorities.
3) Please understand that only the poor are executed. Or, as the prison slogan has it, “Them that has the capital don't get the punishment.”
A study of capital trials in America will demonstrate that prosecutors rarely go for death against a wealthy defendant. Unsuccessful prosecutions, often the result of going up against a high-priced defense attorney, don't look good on their records.
Pope John Paul II called Catholics to be mindful of a “special option for the poor.” Criminal justice in America has made the death penalty the exclusive option of the poor. The 3,600+ men and women on America's death rows are virtually all poor people, a significant percentage of whom, had they been able to afford a competent defense attorney, would not be where they are today.
Between forty and fifty percent of capital convictions have been reversed in the years since the death penalty was reinstated - Found unconstitutional in 1972 because of arbitrary and capricious use, it was reinstated in ‘76 after certain “safeguards” were put into place. A large percentage of the reversals are granted on the grounds of ineffective assistance of counsel. Those who study the issue maintain that the people who end up on death row today are not those who are the most guilty, but rather those who had the worst lawyers.
Supreme Court Justice Ruth Bader Ginsburg, speaking at the University of the District of Columbia , said “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial… People who are well represented at trial do not get the death penalty.”
Court-appointed counsel in death cases, provided by law for indigent defendants, is all-too-often either inexperienced, incompetent or so overworked - as with public defenders - that the ideal of equal justice is mocked. In many states, court-appointed counsel are paid a statutorily limited amount of money. Asking lawyers to take cases that are unpopular, hugely time consuming and emotionally difficult, then paying the equivalent of about $10 per hour doesn't promise good results. Some of you may have heard of Calvin Burdine, in Texas . Mr. Burdine was represented by an attorney who slept during significant portions of the trial. He would point this out to the judge, the lawyer would be awakened, then go back to sleep. As one judge reviewing the case put it, “The Constitution says you have to have an attorney. It doesn't say he has to be awake.”
And the prosecutors they come up against may be like one in Ohio . In March 1997 fresh exculpatory evidence was presented to the Court and the state did not dispute its accuracy. Prosecutor Dan Gershutz said: "Even though this new evidence may establish Mr. Richey's innocence, the Ohio and United States Constitution nonetheless allows him to be executed because the prosecution did not know that the scientific testimony offered at the trial was false and unreliable."
4) Please understand that the death penalty costs more than twice as much as life without parole.
First, a sentence of Life Imprisonment Without the Possibility of Parole does exist in our system and is available in many states. In California , according to the Governor's office, over 3,100 people have been given Life Without Parole (or LWOP, as it is known) and the only two ever released because it was found they were innocent. One of them, DeWayne McKinney, spent 19 years behind bars. Texas, the nation's leading killer of convicted felons, has not had an LWOP alternative on the books, but the storm of attention and controversy surrounding the executions of Karla Faye Tucker, Gary Graham and others, as well as the recent discovery of corruption in their forensic labs, has raised the issue again. It continues to be fought by local District Attorneys.
Because of the Supreme Court mandated “safeguards” mentioned earlier, those changes intended to deal with problems inherent in the death penalty, certain legal requirements have to be met in order to meet Constitutional muster. The Court said “death is different,” so extra care must be taken to avoid error. One is a bifurcated trial, which is essentially two trials, one to determine guilt or innocence and the second, if there is a conviction, to determine the sentence. A jury in a capital case must be “death qualified,” screened in order to weed out anyone who opposes the death penalty (a notion rife with ethical problems of its own, as a recent study showed those who support the death penalty more likely to be racially prejudiced and more pro-prosecution). This has resulted in a recent ruling in Florida that ministers, preachers thought likely to be too sympathetic, can be excused from juries. Extra security measures are required in capital cases. Extra provision must be made, in many states, for investigation, background checks, psychological studies, researching for mitigating circumstances, etc. Then, there are a series of court-mandated appeals to ensure that the process was fair and the defendant's Constitutional rights honored. These appeals first go through the courts of the state, then through the federal system. It takes years to go through this process, not because of “tricks” or delaying tactics on the part of the defense, but because the Supreme Court said that taking of a life requires such care. In this process, 40 to 50% of death cases fall out, resulting in either a new trial or a lesser sentence.
And even with all of these precautions we find people spending 10, 15, 20 years on death row before being exonerated through the use of a new scientific technique or the diligent work of a caring lawyer, friend or interested party.
All of this takes time and costs money. We now know that a death penalty trial, appeals and eventual execution costs two to three times as much as does a simple trial for Life Without Parole and the maintenance in prison of the convicted person for an average of forty years. The Sacramento Bee did a study in the early ‘90s that showed California would save about $90 million per year through the simple expedient of eliminating the death system - an interesting consideration today as we face a multi-billion dollar budget shortfall. A later study in New York said they'd save $120 million and it's the same across the country.
5) Please understand that we are killing the mentally damaged and, until recently, the mentally retarded in our chambers of death.
Though a growing number of states placed explicit legal bars against executing the mentally retarded, others, including California , refused. Thus it was up to the Supreme Court, in the summer of 2002, to reverse its own twelve-year-old finding and outlaw the execution of the mentally retarded.
But retardation in too many instances has become like the question of sanity, with different experts arguing different conclusions. Because of hair-splitting decisions and the need to feed the machine, prosecutors find themselves in the unenviable position of accusing sick, deranged, disturbed and retarded people of faking their conditions. In Marin County, California argued that convicted murderer Horace Kelly, who has been living in his own excrement for 15 years, surrounded by moldy food and soiled bedding, in a state of “bizarre delusions and hallucinations, incoherence, catatonic behavior and inappropriate affect”, according to a prison psychiatrist, is sane enough for us to kill.
In Arkansas in 1992, Ricky Rae Rector, who had effectively been lobotomized by a self-inflicted gunshot wound at the time of his crime and had virtually no comprehension of his situation, was led to his execution. As was his habit, he left the dessert from his last meal waiting in his cell for “when he returned.”
In April '99 Manny Babbitt died here for killing an elderly woman. A slow boy, still in the 7th grade at the age of 17, Manny quit school to become a Marine where he served at the siege of Khe San. He came back from Vietnam even more “different” than before, living on the streets, obsessing about the war, drinking and using drugs, lost. Ultimately he was diagnosed as schizophrenic, yet turned back out on the street. The circumstances at the crime scene led many to believe he was suffering a delayed-stress induced flash-back - for example, he left the body “tagged,” a practice used for dead Marines at Khe San. Manny had no memory of the crime.
Wanda Jean Allen was killed in Oklahoma four years ago, a woman with brain damage and an IQ of 69.
John Paul Penry, in Texas , had his conviction overturned by the U.S. Supreme Court and is still struggling with the state. When given word that the Supreme Court had stayed his execution the last time around, Penry said, "The only thing what I know is, the warden came back and told me, 'Mr. Penry, you got a stay.'" From his lawyers, Penry knew that "stay" meant he would not be put to death that night. He said that the warden, who was accompanied by a chaplain, held a legal document. "He couldn't read it to me," Penry said of the warden, "so he gave it to Father Walsh to read. The warden didn't understand the Catholic language, and it was in Catholic. Father Walsh read it to me because he understands Catholic."
In 2003 the United States Court of Appeals for the Eighth Circuit approved the involuntary administration of anti-psychotic drugs to a death-row inmate so he could be made sane enough to be executed.
Last year Human Rights Watch said that one in six of those in our prisons today are mentally ill, creating a phenomenon in which the United States enjoys the distinction of having more of its mentally ill population in prison than in mental institutions.
6) Please understand that we kill those who were children when they committed their crimes, despite international agreements condemning it. In this practice we stand in the company of Nigeria , Afghanistan , Iran and Saudi Arabia .
One study showed that the majority of young people examined on death row, those who were legally children when they committed the crimes for which they stood convicted, presented visible brain damage as a result of head trauma.
Sean Sellers was executed in Oklahoma for killing his parents when he was 16 years old. This is a boy who has been diagnosed as having multiple personality syndrome, usually a result of extreme physical and sexual abuse as a child. The diagnosis was recognized by an appeals court that felt itself barred from intervening in the execution because the issue had not been properly raised at trial.
In October of '02 the U.S. Supreme Court refused to halt the execution of two men who were sentenced to death for crimes committed when they were juveniles. In an unusually strong dissent, four members of the Court called such executions “shameful,” and added, “The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society.” (Stevens, Souter, Ginsburg, Breyer) This was subsequently repeated by the Missouri Supreme Court, which held the execution of a juvenile offender to be unconstitutional. The U.S. Supremes are expected to rule on the issue momentarily.
7. One last point. What of the victims? Don't they deserve “closure?”
As a person who has lost a dear friend to violence, the concept of “closure” is in my view a creation of prosecutors and some so-called “victim's rights” groups who preach that the only way our pain can be ended is to inflict it on another family by spilling the blood of the presumed perpetrator. The existence of Murder Victim's Families for Reconciliation, a nation-wide group of families of murder victims, argues otherwise. Their view is perhaps best summed up by Tom Mauser, a former supporter of the death penalty who lost a son in the shootings at Columbine High School . He said “I have come to learn that even with the death of my son's killer, even with the pressure of those in society who rush us to ‘reach closure,' there is no closure when you lose a child. I believe that a death sentence is merely an attempt to gain revenge, not closure. I believe that a barbaric, violent act of revenge is not a way to honor our loved one.”
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Feodor Dostoevsky said “if you want to look at the soul of a nation, look into its prisons.” Less well known is then Home Secretary Winston Churchill's 1910 address to Parliament in which he said, “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused, and even of the convicted criminal… measure(s) the stored-up strength of a nation and (is) sign and proof of the living virtue in it.”
Nelson Mandela, who has reason to know, said “A nation should not be judged by how it treats its highest citizens, but its lowest ones.” (Long Walk to Freedom)
Virtually all major faith groups oppose the use of capital punishment. Because it is applied in a manner that is racially disproportionate; because it kills the innocent, the mentally ill, the economically disadvantaged; because it has skewed the political system by attacks on judges unfairly characterized as “soft” on crime; because it has been used to create a political climate which puts undue pressure on police and prosecutors to perform, thus increasing the likelihood of prosecutorial and police misconduct; because it is used by slogan wielding demagogues who have found that “tough on crime” rhetoric helps a political career; because it is unnecessary, ineffective and destructive of the moral fabric of our nation, I believe we must put an end to this loathsome practice.
I hope you'll consider joining me and Death Penalty Focus. Join our campaign for a Moratorium – a temporary halt and study of the system – here in California . Help us end this madness.
Thank you for your attention.
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