Seismic Shift

The seismic shift in the politics of the death penalty is staggering. Literally. Those who have long labored in the vineyards of abolition find themselves suddenly able to talk about the subject in polite company, yet uncertain just how to deal with the headway that's being made. The latter is understandable, for two reasons. Some of the newly arriving allies simply smell blood and want to be in for the political kill. Having expended no capital in the long struggle, with little understanding of the nuances of the issue, their energy is impressive and possibly of value, but likely good only for the short term. Others' newfound interest arises only because the public is expressing concern. Their goal is to undermine and nullify any significant alteration in what is for them an important political tool.

So, to those who have struggled mightily to put an end to the barbarity of state killing in America, a word of advice: two, actually. Caveat emptor. Many of your new allies are more interested in quick results than true abolition, others are intent only on co-opting the developing momentum and turning it to their advantage.

The first group, more positively intended, includes many well-meaning individuals and organizations, some with long-sought philanthropic dollars to invest in a 'good cause', but their commitment too often translates into how-soon-do-I-get-something-to-show-for-my-money and their company may quickly be a memory. They can certainly be helpful and should surely be welcomed, but a short attention span and a need for the reassurance of the often superficial analysis of "experts" bode ill for a long marriage.

The others are more problematic. Along with the shocked realization that those damned left-wingers in the media have caught on and are dangerously close to exposing them, the bad news in the polls and the avalanche of exonerations, new studies and sudden conversions have brought the bloodthirsty up short. Politicians to the core, these heretofore steely-eyed dealers in death, pillars of rectitude all, suddenly find it necessary to demonstrate their willingness to perhaps take another look at this system they've built. Perhaps.

Not all have come over, of course; many are still happy to cast the first stone. But even Jerry Falwell, Christ's personal used-car salesman, opined that Karla Faye Tucker's conversion made her deserving of life and, word has it, he even asked mercy for a Black man named Shaka Sankofa, once Gary Graham, in Texas.

Speaking of which, the Lone Star State's serial-killer governor, who never saw an executionee who wasn't, by God, guilty as charged after having "full access to the courts" - now known to include deafness to innocence, sleeping defense attorneys, experts in ethnic propensities for violence and the world's record in lining up children-to-be-killed-for-killing - himself even granted a short hiatus in a recent death march to allow for a pesky DNA test.

This sudden awakening to dysfunction in the death system, having made even Al Gore "uncomfortable," as he has "assumed up until very recently that the mistakes were rare and unusual" (where has he been?) has caused a flurry of climbers-on to the Moratorium bandwagon. The moratorium, a good idea adopted by the American Bar Association in 1997, calls for a halt to the killing while a serious study of the flaws inherent in the death system are examined and, if possible, rectified. But because such a study, if objective and serious, will lead inevitably to abolition, this spate of converts, who quickly see the handwriting on the wall, are even more quickly disemboweling moratorium by insisting on "reform."

'What, we're killing too many blacks? Toss a few whites in there.' 'What, we have to give up killing kids and retards? Oh for God's sake what's next?' 'What, we're only killing the poor? Maybe we can find... no, I guess not.' 'Jesus, how do we save this thing? We sure as hell can't give it up; it's a barn-burner on election-day!'

'How the hell did we get here, anyway?'

Though the hope burned bright that Furman v. Georgia had driven a stake through the heart of capital punishment in 1972, the Supreme Court opened the lid of the casket again in '76 with Gregg v. Georgia. Gary Gilmore's Utah-firing-squad-assisted suicide that year saw the specter rise and John Spenkelink's 1979 death at Florida's hands, the country's first post-Furman involuntary execution, made clear the fangs were out and blood would flow.

The killings put the spur to abolitionists who, though hugely unprepared and under-financed, began to rally, but for many years their efforts were largely undetectable.

Taught by Nixon that the nation could be manipulated by deceptive campaigns, the right decided that a fearful America would respond to those who were "tough on crime." And what better way to show how tough you are on crime than to kill?

Soon, banging away at the fear of crime and promoting death as the answer, they had the people in their pocket and opponents on the run. "Soft on Crime," it seemed, was as effective in political terms as "Soft on Communism," and as 75 to 80% of the populace was herded into expressing support for the death penalty, the other side was excoriated as bleeding hearts, lefties and sob sisters. Quickly abandoned by erstwhile political allies more interested in reelection than justice, it didn't take long for abolitionists to become America's political untouchables.

Despite straightened circumstances, however, small groups, convinced that the death penalty was corrosive of the moral fabric of the nation, continued to meet, talk and lick their wounds. Whether out of religious, moral or philosophical conviction; from a deep-seated belief that government should not be able to usurp the fundamental right to life; out of a sense that it was unfair for the forces of government to line up against the powerless, knowing that the right to kill would inevitably be used against the most unpopular elements in society; or simply born from a stubborn notion that killing was just plain wrong, people continued to speak, write and eventually organize.

Many stone-slingers contested the establishment's Goliath. Tony Amsterdam provided legal leadership, expertise and inspiration. In the Death Belt, Millard Farmer and Joe Nursey roamed; Mike Mello, Dick Burr, Mark Olive and Scharlette Holdman fought the system in Florida; Steve Bright set up the Southern Center for Human Rights in Atlanta; the SCHR begat Bryan Stevenson, who took on Alabama as David Bruck held forth in South Carolina. Reverend Joe Ingle of the Church of Christ weighed in with his Southern Center on Jails and Prisons out of Nashville and eventually spawned Marie Deans' organization in Virginia. The NAACP Legal Defense Fund, under George Kendall, strove mightily against the tide and "The Thin Blue Line," a documentary film, exposed gross injustice in Texas causing Randall Dale Adams' release from death row. These and other efforts, small but mighty, fought the killing to a standstill in a few instances, but for the most part watched in anguish as the death toll mounted.

Drunk with the power of their own position, death's apologists continued their bloody ways, scoffing at the niggling chatter from below the radar screen as they attempted to further rearrange the social contract. The chatter, however, grew louder and more proudly expressed as abolitionists, infuriated that the killing machine was creating the very horror they had warned against, refused to go away.

Undaunted by the mantra of politicians and pollsters, anti-death forces formed loose coalitions, sharing information and arming each other with the results of small victories and ever-newer studies showing the social damage caused by the blood-for-blood ethos. Justice Thurgood Marshall had it about right, they felt: "The question with which we must deal is not whether a substantial portion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in light of all information presently available." Thus, going to the heart of the matter, striving, usually in vain, to push good information through the political white noise, abolitionists eventually found themselves in the vanguard of an international movement.

As nation after nation did away with the death penalty, America's hypocritical position on human rights - loudly expressed indignation about violations abroad coupled with smug certitude about craven acts at home - caused increasing scowls from our neighbors, only to be deflected by patronizing shrugs from our Leaders of the Free World.

Abolitionists continued the struggle, clinging to the belief that by gradually educating the public about the ugly reality of capital punishment, American style, change would inevitably come. But politics dealt that conviction a mighty blow as Michael Dukakis' rote, emotionless response to a question challenging his death penalty opposition in the 1988 presidential debate nearly sealed the question for good, tying abolition securely to the ACLU-card-carrying-low-testosterone-crowd and drawing huge snorts of derision from red-blooded Americans.

The question, it seemed, was settled. "The death penalty only cuts one way in politics, you kill," a lesson not lost on candidate Clinton, who raced home from the New Hampshire hustings to preside over the death of brain-damaged Ricky Ray Rector, who showed his awareness of his fate by leaving the dessert from his last meal waiting in his cell "for later," when he returned from the death chamber.

And then along came the nun. Sister Helen Prejean's book, "Dead Man Walking," struck a chord, going to the heart of long-buried concerns. Her simple, eloquent faith exposed the audacity of the state's killing process and cracks began to appear in the facade. In Tim Robbins' motion picture of the same name, Susan Sarandon's Sister Helen brought a vivid personal awareness of the anguish of state killing to millions, and the cracks widened.

The political front held and pointed with glee to the polls, but chinks were appearing nonetheless. Reports showing racism in death penalty politics, innocents on death row, police and prosecutorial misconduct, hopelessly inept, drunken and slumbering court-appointed defense counsel were studiously ignored and when small knots of concern did appear, the "Tough on Crime" banners were quickly unfurled and "victim's rights" groups, organized and subsidized by the state, prosecutors and the prison industry, called for more death, younger death, quicker death. Or perhaps, some genius determined, quieter death was the answer. If we can't shoot 'em or fry 'em or gas 'em without causing a stink, why we'll just stick 'em with a needle and put 'em down like the dogs they are.

But the nun wouldn't go away. Nor would others whose continuing efforts had been scoffed at by political leaders. Nor would world criticism. The International Commission of Jurists condemned the U.S. system. The human rights movement, led by Human Rights Watch and Amnesty International, then joined by the U.N. Human Rights Commission, went on record against this flagrant violation of evolving world standards.

Disturbed by inattention to obvious flaws that were becoming a professional scandal, the American Bar Association took a deep breath; until we can examine these problems and find a way to make the system function properly, they said, a moratorium is necessary.

Then an audacious law professor and a tireless professor of journalism gambled that a national event putting on a single stage as many of the then 76 men and women who had been wrongly condemned since reinstatement could be gathered together might catch the public's attention. It did. 29 human beings lined up before the world's cameras and microphones and said, "If the state of (you fill in the blank) had had its way, I would be dead today."

Developments in forensic science, most especially refinements in the process of testing and utilizing DNA, coupled with a newly energized corps of pro bono attorneys, investigative journalists, students, religious, academics, citizens and activists of all stripes, came together in efforts that raised the eyebrows of the nation and the blood pressure of the killing forces as they brought the number of innocents released from death row from 76 to 87 in a matter of months.

With Samson straining at the pillars and the structure beginning to shake, political players could no longer pretend not to notice. The problem was, what to do about it? The question of providing leadership seems, with one or two exceptions, never to have come to mind.

Hence, the thunderclap. In January of this year, Governor George Ryan of Illinois looked the problem square in the eye and refused to blink. Even as a legislative task force in his state was holding hearings - a time-honored way for politicians to do nothing - he watched the 13th man walk free from his death row and said "Enough!" Declaring a unilateral moratorium on death in his state until the system can be studied and fundamental errors fixed, Ryan flung the gauntlet in the face of every pretender to leadership in the country.

Few moved to pick it up. Having studiously ignored a forthright piece of legislation by Senator Russ Feingold calling for a federal moratorium, the newly 'concerned' looked elsewhere. Then the New Hampshire Legislature, moved by Governor Ryan's example, voted to abolish the death penalty, a principled decision quickly squelched by their politically ambitious but morally challenged governor. Squelched or not, the act continues to resonate.

And now the lid is off. The news won't stop. The facts won't be denied. Injustices that have been rendered invisible for decades rise from the fog of willing ignorance and demand an accounting. The ghost of Warren McClesky, who was executed in Georgia after unsuccessfully arguing that black men were disproportionately sentenced to death, challenges us to face the reality suggested in Justice Lewis Powell's denial: "McClesky's claim," [based on Professor David Baldus' study demonstrating evidence of institutional racism in capital sentencing] "taken to its logical conclusion, throws into serious question the principles that underlie our entire justice system."

Rather than face that reality, the 'reformers' are intent on tinkering, as Powell and company did by closing their eyes and killing Warren McClesky - and a long list of others, most recently Shaka Sankofa.

The abolition movement, understanding that the death penalty is retained for political reasons having nothing to do with justice, insists that we not only can face that reality, but must.

As the man once asked, 'how many deaths will it take 'til they know that too many people have died'?

Abolitionists, work with your new allies, of course, but don't forget how you got here. Caveat emptor.

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