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In Person: Scott Ritter


BOOKS: The history of capital punishment in America.
A House in Disorder
BOOKS: Domestic labor in the shadows.
FILM: Elections of the absurd.
FILM: Beware, for I am the Master of the Flying Guillotine.

September 13, 2002
Death is Different

Stanislava Dimitrova
So much has been written and said on the topic of capital punishments,” editorialized the Philadelphia Repertory newspaper in 1812, “that it looks like presumptive vanity to pursue the topic any farther.” Yet nearly 200 years later, the death penalty remains one of the nation’s most contentious and widely debated issues, both inside and outside the courtroom; every year brings dozens of new books on the subject as well as countless op-ed columns, law review articles and judicial opinions on every facet of capital punishment.

For just as long, it seems, opposition to the death penalty has been nearing the tipping point, that moment when public opinion will turn irreversibly against state-sanctioned killing. “Humanity and reason are likely to prevail so far in our legislature that a law will probably pass in a few weeks to abolish capital punishment in all cases whatever,” Benjamin Rush, a leading American opponent of the death penalty, predicted in 1793, voicing an enduring conviction that executions would be a casualty of progress.

Though the death penalty remains entrenched—46 prisoners have been executed so far this year—opponents again find themselves in a moment of optimism, where capital punishment appears on the verge of collapse. In recent months, Maryland joined Illinois in imposing a moratorium on executions; the number of wrongly convicted Death Row inmates who have been exonerated since 1976 now tops 100; in public opinion polls, even after 9/11, support for capital punishment is declining. This summer saw the Supreme Court take its strongest action against capital punishment in decades, outlawing the execution of the mentally retarded and throwing out death sentences imposed by judges without a jury’s consent. Conventional wisdom says the justices are having second thoughts because of shifting public sentiment. As a former solicitor general told Time: “Of this aspect of the Constitution, the Supreme Court is a follower, not a leader.”

Indeed, over the past two centuries, the U.S. criminal justice system has gone from being the envy of Alexis de Tocqueville to the enemy of Amnesty International. The rest of the civilized world abolished the death penalty years ago, leaving the United States in league with China, Saudi Arabia and the Taliban. How did we get to this point? Exploring the history of capital punishment in this country not only helps explain the paradoxes of the American death penalty regime, but offers clues as to how death penalty opponents might finally abolish this peculiar institution.

In his invaluable and exhaustively researched history, Stuart Banner traces the evolution of “the way Americans have understood and experienced the death penalty.” He begins in Colonial times, when death was widely considered the appropriate punishment for murder as well as lesser crimes such as burglary and horse thievery. “Executing a fellow human being was just as momentous in the seventeenth and eighteenth centuries as it is today,” writes Banner, a law professor at Washington University in St. Louis. “But because of the institutional structure and prevailing religious beliefs of [the] time, capital punishment could serve a broader set of purposes.”

Before the advent of the prison system, the death penalty was the primary option for dealing with crime, “the base point from which other kinds of punishment deviated.” Because the ultimate penalty often seemed too harsh, last-minute reprieves became common; lesser infractions sometimes were punished with bizzare mock hangings—where the condemned stood in the noose for an hour before being released. More heinous offenses, however, might warrant burning at the stake or gibbeting—the suspension of a corpse in an iron cage, where it would rot in public. Rituals like these emphatically demonstrated the power of the state.

Execution then—and well into the 19th century—was a public event with its own pomp and circumstance. A popular spectacle for family entertainment, the crowds at an execution sometimes numbered in the tens of thousands. The dramaturgy surrounding an execution was crucial, Banner explains. “The ceremony permitted what might otherwise have been paradoxical: the ritual display of violence as a means of dramatizing the community’s disapproval of violence.”

In early America, there was little controversy over whether the death penalty was too severe a punishment. That began to change by the end of the 18th century—at least in the North. As Enlightenment ideas spread to the realm of criminal justice, the notion took hold that criminals—increasingly seen as sick rather than evil—could be rehabilitated. Thus prison became the standard means of punishment, and many states outlawed capital punishment for lesser crimes. “In no country is criminal justice administered with more mildness than in the United States,” gushed de Tocqueville in Democracy in America. “The Americans have almost expunged capital punishment from their codes.”

Reformers of the 18th and 19th centuries questioned the morality and efficacy of the death penalty. But strikingly absent from the public debate was any discussion of inequality. Few southern states limited their death penalty statutes, and the exceptions did so only for whites. In 1856, Virginia counted 66 capital crimes for slaves, but only one—murder—for whites. Unsurprisingly, blacks were hanged in numbers far out of proportion to whites, even without counting the lynchings that surely outnumbered legal executions. (Of course, long after emancipation, the death penalty would continue to operate as a means of racial control.)

Source: Bureau of Justice Statistics
In 1846, Michigan became the first state to abolish the death penalty for murder, and most states in the North seriously considered such a move. Public opinion on the issue became sharply split. Six states would abolish the death penalty before the turn of the century, and another nine states abolished the death penalty by 1917 (though seven would reinstate capital punishment before 1920). “For every state that abolished capital punishment during the first two decades of the century, there were two that came close,” Banner writes. “There was often little separating the states that abolished capital punishment from those that did not. A single well-publicized case could be enough to tip the balance.”

This reform era marked a transformation in the way Americans perceived—and carried out—the death penalty. Northern elites increasingly viewed public executions as unseemly, low-class affairs that riled up dangerous elements. Soon women were banned from attending hangings. Then states moved the gallows out of public view and conducted executions behind prison walls. In the process, Banner argues, executions lost their symbolic meaning as rituals of collective condemnation.

At the same time, the technology of executions was changing. Hanging came to be seen as too cruel, and states began to search for “technology [that] would make the death penalty more humane by making it less human.” This development centralized and “privatized” executions, Banner argues, further transforming the meaning of capital punishment. The electric chair (and later the gas chamber and lethal injection) required trained specialists to operate the machinery, which was usually housed in remote locations; the idea of executions as a visual deterrent had been abandoned (indeed there have been only two known photos taken of the electric chair in use).

The search for a more humane method of execution led to some absurd moments. In one priceless anecdote, Banner tells the story of how Thomas Edison tried to use the electric chair to secure a bigger share of the electricity market. Edison funded development of a chair using alternating current—the technology of his chief competitor, George Westinghouse—reasoning that nothing would better demonstrate its danger than the state using it to kill criminals. Banner writes:

One of Edison’s associates would later suggest westinghouse as an appropriate noun for the device and a handy verb to describe the process in which it would be employed. Just as French criminals were guillotined, he reasoned, American criminals could be westinghoused.

Later Westinghouse would secretly hire lawyers to defend William Kemmler, the first inmate scheduled for electrocution, arguing that the chair constituted cruel and unusual punishment. They lost.

The annual number of executions in the United States peaked in 1935 at 199. The last year with more than 100 executions was 1951. The death penalty’s popularity declined in the following years, due to a combination of falling crime rates, a better-organized political opposition, and a high-profile series of controversial capital cases. By 1966, opponents of capital punishment outnumbered supporters in opinion polls for the first and last time.

In 1968, also for the first time, not a single person was executed. There were no executions the next year either, though 143 defendants were sentenced to death. Why the discrepancy? “Many more condemned criminals were appealing their cases to higher courts than ever before, and many of them were winning,” Banner explains. “Appeals, not public opinion, put a temporary end to capital punishment.”

Banner characterizes this phenomenon as the “constitutionalization” of capital punishment. Whereas the fight against the death penalty previously had been waged on the political front, the battle in the latter half of the 20th century would be fought through litigation, most notably in a series of landmark cases before the Supreme Court. An especially fine section of the book details the behind-the-scenes maneuvering among lawyers, clerks and justices at the Supreme Court before capital punishment was declared unconstitutional in 1972. “These death sentences are cruel and unusual,” Justice Potter Stewart famously observed in one of nine separate opinions issued in Furman v. Georgia, “in the same way that being struck by lightning is cruel and unusual.”

The sentences of most of the country’s Death Row inmates were vacated (in Arkansas, the electric chair was unplugged and used for giving haircuts). But the stay of executions didn’t last very long. Politically, capital punishment proponents were galvanized by the Furman decision. States quickly redrafted their death penalty statutes to address a majority of the court’s concerns about the arbitrary application of the death penalty. Within three years of Furman, more death sentences were being imposed than ever before. In 1977, Utah’s Gary Gilmore became the first to be executed under the new court-sanctioned scheme.

Periods of abolition have always been followed by periods of sharp diminution in the strength of the abolitionist movement,” Banner writes. But this time capital punishment came back with a vengeance. Banner aptly titles the final chapter of his book “Resurrection”: The end of the century would see a resurgence of capital punishment, with record numbers housed on Death Row and annual execution totals unseen since the ’50s—peaking at 98 in 1999.

Whether capital punishment actually deterred crime had become largely irrelevant. The public seemed hungry for retribution—polls showed nearly three-quarters consistently supporting the death penalty—and the politicians were more than happy to oblige. Looking to get “tough on crime,” prosecutors sought more death sentences, and judges (especially at election time) crowed about carrying them out. Legislators passed laws—culminating with the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA)—that severely curtailed federal habeas corpus appeals. The abolition movement was on the ropes, a few lonely nuns holding candlelight vigils outside the prison gates.

The tide has turned again in the past few years. But it remains to be seen whether growing concerns about the death penalty—largely spurred by the harrowing examples of the wrongly convicted on Death Row—represent a sea change or a stalemate. Support for capital punishment, in the abstract at least, remains high. But the debate over the death penalty has shifted from the question of right or wrong to whether the system can be fixed.

Only two known photos have been taken of the electric chair in use. One appeared on the front-page of the Daily News in 1928.
Answering that question—or, more specifically, “what reforms, if any, would ensure that the Illinois capital punishment system is fair, just and accurate?”—was the mandate of the special commission appointed by Gov. George Ryan after he imposed a moratorium on executions in 2000. Illinois had executed 12 people since the reinstatement of capital punishment; but 13 others on Death Row were exonerated and released, including Anthony Porter, who had come within 50 hours of execution before a group of journalism students and a private investigator stumbled upon the real killer.

In a two-year study, the 14-member group looked closely at these miscarriages of justice and all 275 capital decisions handed down since reinstatement of the death penalty (more than half of which were reversed at some point in the appeals process). In April, the commission released their comprehensive report, a document that surely will serve as a model for other states examining their own flawed systems. The final report contains 85 specific recommendations, many of them highly technical, that cover every stage of the process: investigation, arrest, trial, sentencing, appeal. The most important and sensible recommendations include:

  • Videotaping all police questioning of suspects—not just confessions, but the entire interrogation process.
  • Revising the methods and procedures for conducting lineups and photo spreads of potential suspects, to avoid false-positive identifications and undue influence by investigating officers.
  • Limiting the number of circumstances under which a defendant is eligible for the death penalty; and creating a statewide commission to review and approve local prosecutors’ decisions to seek the death penalty.
  • Instituting minimum training and experience standards for capital defenders. (The single most important factor in determining whether someone will be sent to Death Row is the quality of his lawyer.)
  • Disallowing death sentences when a conviction is based solely on the testimony of a single eyewitness, a jailhouse snitch or an accomplice; and mandating a life sentence if a judge doesn’t concur with the jury’s recommendation of the death penalty.
  • Creating an independent forensics laboratory not under police supervision; expediting the access of defendants and their attorneys to DNA evidence; and increasing funding for independent crime labs to deal with the growing backlog. (In Illinois, the average time of completion for DNA testing is 16.5 months.)

Such reforms are long overdue and could help save lives. Better yet, most of these measures would ensure a fairer system not only in capital cases, but for all criminal defendants (and they’d help the prosecution be sure the actual culprits are in custody).

Unfortunately, the Illinois legislature, which reconvenes in November, has done little to advance—let alone finance—any of these recommendations. In fact, the legislature sent the governor a bill to expand the death penalty to cover terrorists. The moratorium remains in place, but George Ryan is a scandal-plagued lame duck, and there’s no guarantee his successor will continue his crusade. That increases speculation that Ryan might commute the sentences of all 160 inmates on Death Row before he leaves office.

But even if the legislature were to implement all of the recommendations, the state still couldn’t guarantee that someone innocent wouldn’t be executed. In fact, a narrow majority of the commission itself ultimately favored abolishing capital punishment entirely.

Abolition is the only honest conclusion anyone who studies capital punishment can reach, say the journalists, lawyers, students and social workers featured in Machinery of Death. “Take any route you like into death row,” Christopher Hitchens writes in the foreword to this collection of articles, essays and interviews. “There is no emerging from such a place with any demand save that it be demolished.”

The book takes its name from Supreme Court Justice Harry Blackmun’s declaration, after years of trying to fix the capital punishment system, that he would “no longer tinker with the machinery of death.” The contributors to this volume, edited by law professor David R. Dow and journalist Mark Dow, all have witnessed the capital punishment system first-hand. More than one chapter describes watching a prisoner the authors have come to know taking his final walk toward the execution chamber.

Machinery of Death is ultimately less than the sum of its parts. The chapters tend to be repetitive, and the book’s disjointed organization distracts from its important conclusions. But several pieces do stand out, such as Ken Silverstein’s exposé of the Alabama criminal courts and the personal reflection of Bud Welch, a death penalty opponent whose daughter was killed in the Oklahoma City bombing, upon his visit with Timothy McVeigh’s father.

Then there’s the case—so quickly forgotten—of Gary Graham, the almost surely innocent man executed by George W. Bush in Texas during the 2000 campaign. Graham’s story, retold here by his attorneys, is a microcosm of everything wrong with the death penalty system—from police misconduct and unreliable eyewitness testimony to disgraceful lawyering that not only failed to mount a defense, but set up insurmountable legal obstacles on appeal.

But complicity in Graham’s death must be shared by Congress and President Clinton: Concerned that the federal courts were reversing too many state-imposed death sentences, they passed the draconian AEDPA. That law gave finality—that is, being sure a prisoner couldn’t delay his execution by repeatedly returning to court—greater weight than actual innocence. “In a historic and tragic irony,” Mandy Welch and Richard Burr conclude, “when public awareness about the flawed processes for imposing the death penalty first dawned and began to grow dramatically, the law governing the review of state death penalty cases in the federal courts had so constricted the federal court’s review that the risk of executing innocent people had increased exponentially.”

This is a tragedy, to be sure. But it may also represent an opportunity. Issues of innocence, fairness and racial inequality have clearly resonated with the public. As former Mississippi prison warden David Cabana tells Mark Dow: “Americans are never going to abolish the death penalty because they are morally objecting to it. They are going to abolish it because we have an innate sense of fairness.”

The capital punishment system is clearly broken beyond repair. Death penalty opponents long have focused their energies on the courts, because political success seemed impossible. That tactical decision wasn’t wrong: The most effective opponents of the death penalty have been defense lawyers. But abolitionists cannot depend on the whims of the Supreme Court. The dismantling of the death penalty regime will come only as a result of a monumental shift in public opinion.

That demands a return to the political struggle: organizing on the local level, highlighting the plight of the wrongly convicted, challenging the scare tactics of the politicians and prosecutors, arguing loudly and publicly that the death penalty is morally wrong, racist, unconstitutional—in short, whatever works—and then striking capital punishment down legislature by legislature, state by state. (Illinois would be a good place to start.)

Opponents have been waiting more than 200 years for reason, humanity or due process to do away with the death penalty. But it won’t happen without political pressure. If capital punishment is on the verge of collapse, then perhaps all it needs is a little push.

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