I have never lost anyone to murder, neither lover, child, nor friend, but I do love and I do fear. I can never really grasp that loss as an outsider, but I dimly recognize my own in those lost. They were young like my daughter or my wife. They had hopes like my sons and memories like my father. Terrible things have been done. I do not deny society’s need to respond in a terrible manner. I have become convinced that the death penalty cannot be that response. What does it offer worthy to weigh against one single tear from the eyes of the survivors? Faced with such grossly tipped scales, it throws its rotting bulk upon the side sunk beneath depths of confusion, inhumanity, and cruelty.
I am awakening to this conviction amidst the echoing words of the Founding Fathers and European revolutionaries, words returning hungry and unfulfilled from their collision with present practices.1 I am awakening amidst this day’s cries and experiences pounding out with gavel and bone the same rhythm of disillusionment. I am well aware of the failures of the eighteenth century, especially when standing before these words of liberty and equality. It is the truth contained in these words that makes this failure so vivid. This American century continues to acknowledge these same words. It is the contrast between word and practice that makes my awakening so abrupt.
The terror of the French Revolution, the horrid outcome of necessity enshrined by pity, is not my siren. The mouth of the guillotine is not capable of forming rights. Its primitive vocal chords, its coarse thuds and cheers, are limited to rites, and those of the devil. The beckoning into my blood of this desire to dismiss the executioner comes from the vision of humanity that was being born or reborn (I care not which) during that imperfect era. The “revolution devouring its own children” is to be forsaken, but the “grandeur of man against the pettiness of the great” or Hamilton’s “vindication of the honor of the human race,” who can despise? Words were being spoken that, fleshed out, would crown man as man.
Hannah Arendt points out that before this era the “inalienable political rights of all men by virtue of birth would have appeared a contradiction in terms . . . the Latin word homo, the equivalent of ‘man,’ signified originally somebody who was nothing but a man, a rightless person, therefore, a slave.”2 Chesterton, in “The Rightness of the French Revolution,” spoke of the positive revolution as opposed to the negative. The answer to unequally distributed dignity is not in abolishing dignity for everybody but instead extending it to everybody, extending to all the crown. The grandeur of each and the honor of all ascend, not to dethrone the sober judgment of self or even the species, but for each to recognize the divine in the other.
This coronation, or remembrance, of the image of God was a cannon shot clearing the path for our Bill of Rights and our Constitution. Its trajectory forged the path for the Eighth and the Fourteenth Amendments forbidding cruel and unusual punishments and claiming equal protection under the law for all. More convicting are the declarations and unpublished judgments found unheeded but unanswerable. In 1777 a petition from America’s slaves requested that the Massachusetts House of Representatives not remain “chargeable with the inconsistency of acting themselves the part which they condemn and oppose in others.” They saw quite plainly how the words of the Declaration of Independence, “stronger than a thousand arguments,” were pleading for the end of slavery.3 Even then, at that early stage, the Language of Liberty and Equality fought against becoming mere “device” for those content to leave the “others” below.
In the twilight of my waking, I examine our darkest corners lit by the lantern of those thoughts. Here is Patrick Henry, draped in chains like Jacob Marley, dragging at his ankles the weight of the “unfinished business of the Constitution,” and leading me down an endless hallway. By the pale light passing through the bars of the few tiny windows, I see him slide his hands across the electric chair, lifting then dropping the simple straps and buckles, so like a child’s belt. A single-file line, over three thousand souls long, stretches back into the darkness. As we walk this line, Supreme Court Justice William Douglas is at our side, still searching “in vain” among the executed for “any members of the affluent strata of our society.” My guides fade and vanish.
The Loom
Two of the nations most respected researchers on race and punishment, Professors Baldus and Woodworth revealed that the odds of receiving a death sentence in Philadelphia are 3.9 times higher if the defendant is black. The researchers studied the capital cases of that city from 1983 to 1993 using techniques similar to those used in medical research. They isolated and ranked aggravating factors according to their role in delivering a death sentence. As an aggravating factor, “blackness” outranked both “murder with multiple stab wounds” and “causing great harm, fear, or pain” in its ability to deliver a death sentence. Studies in Georgia, Florida, Illinois, and other states show similar disparities, oftentimes linked more closely to the race of the victim. In Kentucky in 1996, “100% of the State’s death row inmates were there for murdering a white victim” despite the fact that “there had been over 1,000 African-Americans murdered in Kentucky since the death penalty was reinstated.” 4
The 1998 Baldus-Woodworth study also ranked each case in overall severity to determine whether race played a discernable role at all levels. It did not. White or black, John Wayne Gacy-type serial killers “are nearly certain to receive the death penalty.” In the cases with the lowest levels of severity, “cases where there is little inflammatory evidence,” race was again a less prominent factor. However, the majority of capital cases are in the mid-range. Here in the bulging middle, where prosecutors and jurors have the most discretion, race expands into a leading factor pushing towards death.5
More than race lends its weight to this push. Protection under the law in this nation is allotted in hours and level of legal expertise. Both are available, except in rare circumstances, to the highest bidder. Success is its own reward, but coincidentally the majority of successful lawyers are beyond the means of the poor. Nine out of ten charged with capital murder in this nation are “indigent when arrested, and virtually all are penniless by the time their case reaches the appeals stage.”6 Few and far between are the more skilled and experienced attorneys who forsake greener fields to match the resources the state provides in such high-profile cases.
The resulting outcome finds most capital cases defended by court-appointed attorneys with too many cases and too little time. In Kentucky such lawyers receive $2,500 for an entire trial. In Mississippi the court appointee gets $11.75 an hour. Compare this garage-sale pricing to the six-figure price tag on the investigative and strategic factories of top counsel. Law office studies offer estimates as high as two thousand hours to adequately see a life or death case all the way through. That is a far cry from the few short days allocated to many a defendant, never mind the stories of affordable yet sleepy defenders such as John Benn who, after preparing a total of seven hours for the case, napped away while client George McFarland was being tried and sentenced to death in Texas.7
With full knowledge of the sway that money and resource hold in this world, isn’t equal protection doomed to be more equal for the wealthy? Common sense suggests that if justice is destined to imperfections for the foreseeable future, then let her punishments be also free of “perfections,” the irrevocable “cures” that death brings. As the massacre at Boston by the British barred our path to reconciliation with the monarchy, so let the lynchings of the “others” against the “acquittals” of the privileged sons bar the path to the gallows.
The American death penalty was resurrected in 1976 after being struck down for four years as racist and arbitrary. The twenty-five years since then have confirmed the ability of our prejudice to fashion any procedure into a loom for the shroud. Like Penelope waiting for Odysseus, each day we weave a tapestry of racial and economic disparity, our thread human souls. Each night, rather than discern the pattern and its demands, we unweave the evidence with a turned head, arriving at dawn in time for the next hanging. And begin to weave again.
The Spectre
“I shall ask for abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” —Marquis de Lafayette
In November 1999, the Chicago Tribune tackled the Illinois death-penalty system with an incisive five-part series. They found a system “so riddled with faulty evidence, unscrupulous trial tactics and legal incompetence that justice has been forsaken.”8 Recently Illinois Governor Ryan halted executions in his state after thirteen condemned persons were proven wrongly convicted. Thirteen guilty verdicts in thirteen typical capital trials, followed by thirteen “insufferable monsters” sentenced to death. Thirteen who later turned out to be innocent. Anthony Porter, for one, came within hours of death for a crime he did not commit, recalled to life like Dr. Manette in A Tale of Two Cities. Recalled not by the process but despite it, saved by rare sacrifice and determination. The unlikely breaks in some cases, without which the Illinois thirteen might be the Illinois ten or eleven, point to dire possibilities. We would trust that these are the only thirteen mistakes made in the thousands awaiting death in this nation. We dare to trust such a phantom, but we trust it not with our own.
“Since they have dared, I too shall dare. I shall tell the truth because I pledged myself to tell it if justice, regularly empowered, did not do so, fully, unmitigatedly. My duty is to speak; I have no wish to be an accomplice. My nights would be haunted by the spectre of the innocent being, expiating under the most frightful torture, a crime he never committed.” —Emile Zola9
How easy might it be for such spectres to people the history books? Like Zola’s letter in defense of Dreyfus, Jennifer Thompson’s story accuses our willingness to risk what we can never return.10 In 1984, Jennifer Thompson was a twenty-two-year-old college student. She was also the victim of a violent rape. With rare composure and determination, Jennifer studied her attacker during her long ordeal. She memorized everything about him so that later she could find him and put him away. The next day she pointed out his photo. Within a week she faced him in a lineup and unswervingly identified her rapist. The suspect had a prior record, inconsistent alibis, even a piece of foam missing from his shoe that seemed to match a piece from the crime scene. Ronald Junior Cotton would be sentenced to life for his crime. Jennifer could go on with her life.
Ronald Cotton never ceased proclaiming his innocence. A year later the appellate court granted Cotton a retrial based on new evidence. Another man, Bobby Poole, had been bragging in prison that Cotton was doing some of his time. In the second trial Poole was brought before Jennifer Thompson. She was certain. “I have never seen this man [Poole] in my life.” Cotton and Poole, aside from being black, did not even look much alike. Cotton was again sentenced to life in prison. Eleven years later, knowing that it would bring total closure, Jennifer agreed to allow DNA testing on the evidence from the rape. The DNA tests came back conclusive. She was dead wrong. After eleven years Cotton was released from prison. Bobby Poole pleaded guilty to the crime. In Jennifer’s own words, “The man I was so sure I had never seen in my life was the man who was inches from my throat, who raped me, who hurt me, who took my spirit away, who robbed me of my soul. And the man I had identified so emphatically on so many occasions was absolutely innocent.” If Ronald Cotton could have been given the death penalty, she says she would not have hesitated. “If there was the possibility of a death sentence, I wanted him to die. I wanted to flip the switch.” Jennifer now campaigns to end the death penalty. 11
Fully awake, I behold our judicial system. I see a system that, though it may surpass the rest of the class, betrays its advantage with overconfidence. The possibility of a state-approved process murdering an innocent citizen as an offering of comfort to the populace is harrowing. That it might happen in our day, with this process so “tinkered with” and adjusted, so howling with dire prophecies from both inside and out, is inexcusable. It is inevitable. The carriage of Dickens’s Monseigneur the Marquis again “sweeps round the corners” of the city. The crowds rush to disperse before his horses. There is no telling which unwatched child will end up beneath his wheels, but the “inhuman abandonment of consideration” is a certainty that it will happen. Like Monseigneur we may throw our gold at the loss but it will be flung back. Madame Defarge will knit on, while the lightning stores.
Here Supreme Court Justice Blackmun must speak. Blackmun began his tenure as a death-penalty supporter, but after years of experience concluded:
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 this Court, to develop procedural and substantive rules that would lend more than the mere 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 and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the affirmative. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. 12
The Haunting
Wide-eyed before the horrors of our crimes and now, our punishments, my heart listens for that great orator that must arise in each of us before such possibilities, crying, “Enough of this! Damn the theory of state-sanctioned killing to a world where the nature and history of the residents is other than ours.” This declared, now comes Arendt’s “passion of compassion” that has “haunted and driven the best” of all revolutions.13 Varied spirits, from Rousseau’s “innate repugnance at seeing a fellow creature suffer” to the ghost of Hugo’s Jean Valjean, inhabit my mind, questioning even a death sentence applied accurately and without prejudice. Blind every judge, juror, and prosecutor. Let only the best attorneys defend the accused and grant them the budget of the state. Construct an infallible chute that leads only the guilty to the dock and still, when the condemned approaches the guillotine, something is crying out, “Hold!”
Patrick Henry, while calling for the Bill of Rights, spoke of our punishments and our excess.
When we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our bill of rights.—“that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more—you depart from the genius of your country. . . .
. . . They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.14
In 1789 the authors of the Bill of Rights allowed the gallows to stand. To freeze our sensitivity to cruel and unusual punishments at that stage would be to stunt its growth and do its spirit violence. Hopes must grow with progress or they arrive at complacency. Benjamin Rush’s announcement that an execution in a republic is like a human sacrifice in a religion does not have to stay a minority opinion. It may become a prophecy of our raising “the lower limits.” In Richard Korn’s “Crossing the Abyss,” he speaks of ferocity once beyond the pale becoming commonplace. When the limit of our tolerance lowers to the extermination camp, society becomes less sensitive to the pogrom. “If dropping the lower limit of tolerated mistreatment has the effect of debasing relations all along the scale, then raising it should uplift the whole range.”15 What keeps us from attempting this lift?
The Bloody Charm
Many would cling to deterrence as an answer. They would not have much evidence on their side. This tradition of dropping the blade and lifting the dripping head, holding it forth as a powerful charm as if to ward off man’s bestial nature, has little to show for it. In his brilliant “Reflections on the Guillotine,” Camus reminds us “that at a time when pickpockets were executed in England, other pickpockets exercised their talents in the crowd surrounding the scaffold where their colleague was being hanged.” Of the 250 hanged around the turn of the century in England, “170 had attended one or more executions.” 16
Recent reports and data offer the same missing deterrence. This assertion is not based on my reading of the evidence but on the analysis of the criminologists and police chiefs of this nation revealed in Radelet and Akers’ report Deterrence and the Death Penalty: The Views of the Experts. Death’s uncertainty as a deterrent should not surprise us at all. It has always paled before our ability to deny the inquisitor, to land at Normandy; indeed, death is risked even in giving birth. Why should we expect the bloody charm to govern our baser desires?
Have we forgotten the complexities of man’s free will as it intertwines with his biology? Who could predict and deter the choices of a species which bears both “the image of God” and at times a “heart so desperately wicked that no man can know it.” Few murderers begin their task seated before the hangman’s chalkboard. The impassioned and the insane do not study examples; their teachers are the moment and the ebbing, flowing chemicals in the brain. The cold and calculating, on the other hand, compute but with one constant—that they of all men will not be caught.
Were he alive today, Camus might inquire why, if we claim deterrence, do we brag about the humane nature (if it were even so) of lethal injection? Rather, bring back the “terrible spectacle” needed to “keep the people in check.” Roll out the guillotine and again “exhibit the heads” in our malls and on the front pages of our newspapers. Speed up the executions and let the next Illinois thirteen be silenced. Then maybe we will find the missing deterrence. Or maybe we will find more and more students who see that it is acceptable to kill the worst of your worst. They will, however, define the worst by their own methods. Let Albert Pierrepoint, Britain’s hangman for twenty-five years, have the final word on this myth that we serve the future. “All the men and women whom I have faced at that final moment convince me that in what I have done, I have not prevented a single murder.” 17
Of Beasts from Men
“We are apt to shut our eyes against a painful truth and listen to the song of that siren, till she transforms us into beasts.” —Patrick Henry speaking to a Virginia convention March 23, 1775
What can this aging scaffold, this Dr. Moreau that degrades and transforms us all, offer that life in prison without parole cannot?
Perry Johnson faced this question. Johnson was the director of Michigan’s Department of Corrections during the eighties. Michigan had been without the death penalty since 1847. Johnson, with twenty-seven years experience, had this to say when the state was considering reinstating the punishment in 1982:
I have experienced sorrow and anger over the senseless prison slaying of a friend and loyal employee. I have come to know well many murderers who were serving out their adult lives in prisons. . . .
Some of these people, in my opinion, deserved to die for their crimes. But I have come to the conclusion that we, as a civilized society, should not kill them. 18
Michigan remains without capital punishment.
Taking one step closer to the lamp of experience, I listen to the voice of Michael Hunter speaking from San Quentin’s Death Row.
All through the yard I see the ghosts of victims screaming, crying, threatening, and imploring condemned men for an explanation of why they had to die. Some prisoners try to walk away while others try to communicate an answer, only to discover that for some actions, perhaps, there are no explanations, no second chances, no resolutions. Over in the corner a condemned man stands all alone. No ghosts approach him to ask unanswerable questions. Although a prosecutor persuaded a jury that this man is guilty of murder, he has in fact killed no one. The man will make the final walk to the fast chamber alone in the knowledge of his innocence.19
“Just from a Christian standpoint, you can’t see one of these [executions] and not consider that maybe it’s not right.”
—Texas warden Jim Willett, who has presided over eighty-four executions20
And Cain said to the Lord, “My punishment is greater than I can bear. Behold thou hast driven me away.” Why did the Almighty not take Cain’s life? Why mark him for protection? The first word on the death sentence is against it. The last word is the Word itself made flesh. “Let him who is without sin cast the first stone.” Face-to-face and alone again with a capital case and nothing has changed.
Endnotes: 1. Fathers only because the probably much wiser founding mothers were not recorded. I use man to refer to the human race because of the inability of the language to flow without it. I would sooner follow a sane Joan of Arc than fifty Thomas Paines. History, to my eyes, fails to show evidence of male ability to lead well as an innate character. 2. Hannah Arendt, On Revolution (New York: Viking, 1965), 39. 3. "Negro Voices Raised for Freedom," 1755-1783: Resistance and Revolution, The Annals of America vol. 2, (Chicago: Encyclopaedia Britannica, 1968), 482. 4. Richard C. Dieter, "The Death Penalty in Black & White: Who Lives, Who Dies, Who Decides," June 1998, <www.deathpenalty
info.org/racerpt.html> (Feb. 2001), Study 1: The Increased Risks for Blacks Facing the Death Penalty. 5. Ibid., Mid-Range Cases Versus Extreme Cases. 6. "ACLU Execution Watch," <www.aclu.org/
executionwatch.html(Feb. 2001), The Poverty Connection. 7. Bruce Shapiro, "Law and Order: Sleeping Lawyer Syndrome," The Nation (1997). 8. This powerful series is available online. Ken Armstrong and Steve Mills, "Failure of the Death Penalty in Illinois," Nov. 1999, <www.chicagotribune.com/news/metro/chicago/ws/
0,,37842,00.html> (Feb. 2001), part 1. 9. When the false conviction of Dreyfus resisted all attempts for honor and justice, Emile Zola penned his famous letter, "J'accuse," exposing the shame in brilliant fury. 10. Helen O'Neill, "Jennifer, You Were Wrong," Associated Press, 20 Sept. 2000. 11. Jennifer Thompson, "I Was Certain, but I Was Dead Wrong," Houston Chronicle, 20 June 2000. 12. Callins v. Collins, 510 U.S. 1141 (1994). Excerpt from Justice Blackmun's dissent. This case can be found online at <supct.law.cornell.edu/
supt/html/93-7054.ZA1.html> (Feb. 2001). 13. Arendt, On Revolution, 65. 14. Furman v. Georgia, 408 U.S. 238 (1972). Excerpt from Justice Marshall's concurring opinion. Interestingly, all the countries Henry named as more torturous than our own have abolished the death sentence. This case can be found online at <supct.law.cornell.edu/supct/cases/name.htm#Case_Na
me-F-G> (Feb. 2001). 15. Richard Korn, "Crossing the Abyss: A Veteran Prison Reformer Challenges Our Preconceptions," Cornerstone 29, no. 120 (2000): 16. 16. Albert Camus, Resistance, Rebellion, and Death (New York: Random House, 1960), 189. 17. "Statements Against the Death Penalty," <members.magnet.at/
ai.dornbirn/state-dp.htm> (Feb.2001), Albert Pierrepoint. 18. Perry M. Johnson, "A Prisons Chief Says 'No' to Death Penalty," Boston Globe, 17 Oct. 1982, sec. A, p. 7. 19. Michael Hunter, "A Day in the Life," Michael Hunter (Writings from Death Row), <www.compusmart.ab.ca/deadmantalking/mhdayinl.htm> (Feb. 2001). 20. "New Voices," www.deathpenaltyinfo.org/newvoi
ces.html> (Feb.2001), Texas Warden Questions Executions. Quoted from a New York Times article, 17 Dec. 2000.

First published in Cornerstone (ISSN 0275-2743), Vol. 30, Issue 121 (2001), pg. 15.
© 2001 Cornerstone Communications, Inc.
Electronic version may contain minor changes and corrections from printed version.