Time To Stop Tinkering With the Machinery of Death
Remarks of Senator Russ Feingold to the Ninth Annual Awards Dinner of the Death Penalty Focus, held in Santa Monica CA on April 18, 2000
When Anthony looked at the calendar, he could see that he had only two days to live. Where must your thoughts run when you taste your own death in your mouth?
Do they turn, to paraphrase Jonathan Larson, to sunsets, to midnights, to cups of coffee? To inches, to miles, to the roads you will not travel? To laughter, to strife, to the smiles you will not see? To mothers, to loves, to the children you won't embrace? To 2,000, 800, eighty minutes? Of what do you ponder, when you think of your last two days on earth?
Anthony Porter came to that place in September 1998, on death row, in Cook County, Illinois. Sadly, in the United States at the turn of the twenty-first century, the organized citizenry of thirty-eight states and our nation itself will almost certainly this year put one hundred people in that same place, wondering of what to think, with two days to live. And sadder still, Anthony was innocent.
At the dawn of a new millennium, after 5,000 years of recorded history, the time has come to reconsider whether government-sponsored killing should stop.
For Anthony, with two days to live, the Illinois Supreme Court stayed his execution. A team of journalism students then tracked down the truth, that another man--who confessed on camera--actually committed the crime. An judge ordered Anthony released, after nearly seventeen years in prison.
Since 1973, Illinois has executed twelve people, and has lifted the death sentence from thirteen. The manifest uncertainty with which Illinois sentenced people to die led Governor George Ryan to impose a moratorium while he examines the system.
Nationwide, since 1973, courts have freed eighty-five people from death rows--one for every seven executed. Just as the proverbial thirteenth stroke of a clock calls into question not only itself but the twelve other chimes that preceded it, this scandalously large number of demonstrated errors calls into question the entire enterprise of killing.
Because as long as there are executions, fallible humans will never to a certainty be able to avoid executing the innocent, the killing must stop.
In 1972, the Supreme Court held that the imposition and carrying out of the death penalty in the cases before it violated the Constitution's prohibition of "cruel and unusual punishments." But then in 1976, the Court reinstated the death penalty.
I remember the day in 1979 when the first involuntary execution took place. That morning, I finished my last law school exam. Later that day, I turned on the television to see that Florida had just executed John Spenkelink. I was overcome with a sickening feeling. The legal education I had just completed had filled me with the belief that our legal system was advancing inexorably. Instead, I beheld a throwback to the electric chair, the gallows and our nation's violent past. I will never forget that day.
It used to be that on capital punishment the United States stood with only the Soviet Union and South Africa in the industrialized world. But Boris Yeltsin stopped Russian executions in 1996. And South Africa's Constitutional Court declared the death penalty unconstitutional in 1995 and then its parliament abolished it.
In 1998, the United States was one of just four countries that together accounted for 86 percent of all executions worldwide. We now stand with China, the Democratic Republic of Congo, and Iran.
I traveled to ten countries in Africa last year, often raising human rights. I can remember questioning the minister of one government about its having detaining journalists. The minister replied: "You can hardly criticize us for imprisoning journalists when you have people sitting on death row for twenty years."
Because our use of the death penalty increasingly isolates us in the world, the killing must stop.
Although African-Americans constitute only 13 percent of the population, since 1976, African Americans account for 35 percent of those executed, 43 percent of those who wait on death row, and 67 percent of those who wait on death row in the Federal system. Since 1976, America has executed eleven whites for killing a Black, but has executed 144 Blacks for killing a white.
The ghosts of institutional racism still haunt our courthouses. No matter how hard we try to exorcize the demons of our nation's past, we cannot seem to rid them.
Because the risk appears substantial that people are dying because of the color of their skin, the killing must stop.
Some will say that the death penalty deters crime. Were that so, Europe would have more murders than we do. But the murder rate in the United States is six times that in Britain, seven times that in France and five times that in Sweden.
Or compare Wisconsin and Texas. My state of Wisconsin abolished the death penalty in 1853. Texas has executed about 200 people since 1976. But in recent years, Texas has had a murder rate nearly twice Wisconsin's.
Because the death penalty does not deter crime, the killing must stop.
Indeed, as George Bernard Shaw wrote, "It is the deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind."
Just as parents who beat their children often raise children who grow up to beat their own children, the death penalty teaches the appropriateness of killing. Death begets death. For from the days of the Flood, we have known that "Whoso sheddeth man's blood, by man shall his blood be shed."
Because the institution of the death penalty declares on behalf of all of us that killing is right, the killing must stop.
And should there not be some limit to the powers that the government can arrogate to itself in the name of the people?
Sometime soon, Juan Raul Garza could become the first prisoner executed by the Federal Government since 1963. What right does the nation have to kill this man in the name of us all, including those of us who live in the twelve states and the District of Columbia that have chosen to abolish the death penalty?
George Bernard Shaw said: "Assassination on the scaffold is the worst form of assassination, because it is invested with the approval of society."
Think of the hubris. We mortals, when we put on black robes, take upon ourselves the power of life and death. We cannot create a life, but we arrogate to ourselves the power to end it.
Because "vengeance is mine...saith the Lord," the killing must stop.
This February, Betsy Wolfenden of Carrboro, North Carolina, wrote the Washington Post:
"My husband--who is on death row--and I have four children. Our children have suffered greatly because of the actions of their father. Although our children recognize that their father did something terribly wrong, they still love and need their dad.
"The...children whose parents are on death row...suffer in silence. I know of one 9-year-old who writes on his calendar, 'Daddy dies today,' each time his father receives a new execution date....
"...I would like to tell the families who have been harmed by the murders committed by our loved ones that we understand the pain they are feeling because we feel that pain, too. Their children are innocent victims--but so are ours. I pray that all children whose parents have been murdered will find comfort and peace. But my children may also lose their dad to murder, and I wonder who will weep for them."
That's what Betsy Wolfenden wrote.
Now, of course, I do not seek to absolve this man, or any murderer, for his or her wrongs. But neither can our righteous anger with those wrongs blind us to the unnecessary further wrong that will be done these innocent children.
Because we should always strive, in this imperfect world, that no innocent child should have to bewail the loss of a parent to killing, the killing must stop.
Because the death penalty has become, in Justice Benjamin Cardozo's words, "an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life," the killing must stop.
Because, as Martin Luther King Jr. said, "The old law of an eye for an eye leaves the whole world blind," the killing must stop.
When he retired from his long career of supporting the death penalty, the late Justice Lewis Powell told his biographer in 1991: "I have come to think that capital punishment should be abolished."
And in a 1994 dissent, the late Justice Harry Blackmun wrote: "From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have...struggled...to develop...rules that would lend more than the mere appearance of fairness to the death penalty.... Rather than continue to coddle the Court's delusion that...fairness has been achieved..., I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed."
Like Justices Powell and Blackmun, let us reconsider our nation's position, and stop the tinkering with the machinery of death. Let us stop the killing to protect the innocent who have all too often been condemned to die. Let us stop the killing to join the civilized world in its progress from the barbaric past. Let us stop the killing so as not to reopen again and again the ancient wounds of racial discrimination. Let us stop the killing to honor the value of human life. And let us stop the killing to demonstrate once and for all that, not just with our eyes, we finally can see.