Nation Topics - Death Penalty
News and Features
For more information, see our Death Row Roll Call.
There is probably no punishment more painful to Timothy McVeigh than the great joke just played by the cosmos. In his fantasy life McVeigh has fancied himself a sort of stoic samurai, avenging himself on the FBI for Waco and then committing hara-kiri by halting appeals. In one letter McVeigh referred to his impending execution as a version of "suicide by cop"; he has planned as his last words William Henley's war horse "Invictus": "I am the master of my fate/I am the captain of my soul." It's taken another spectacular FBI blunder to puncture McVeigh's grand delusion. Now Attorney General Ashcroft promises that McVeigh will be executed in Terre Haute on June 11 come hell or high water, but don't bet on it. McVeigh's game is to control his story by any means possible, and he may still play the only Invictus card left in his deck by initiating the appeals he previously rejected.
In the weeks leading up to the May 16 execution date, pundits predicted that McVeigh's execution would restore popular confidence in capital punishment. Instead, we have gotten a national teach-in on one of the defining evils of capital trials: the fallibility and corruption of law enforcement. If the FBI can "misplace" a cache of documents in the most notorious death-penalty case since the Rosenbergs, is it any wonder that nearly 100 factually innocent people have ended up on death row in recent years?
While McVeigh's case has in many ways been historically unique, in this respect it is typical. Back-drawer evidence is part of the everyday landscape of capital punishment in America. According to Columbia University professor James Liebman's remarkable study "A Broken System" (available online at justice.policy.net/jpreport), vital suppressed evidence has led to dismissal of one in five capital cases since 1973. (More than half of capital cases, Liebman found, are dismissed or retried for "grave constitutional error.") When it comes to capital punishment, the last-minute "oops" is the norm, not the exception. That so many executions go ahead anyway is only because of the current Supreme Court's cavalier attitude toward evidence discovered after a death sentence is pronounced. Justice Rehnquist complains of the "enormous burden that having to retry cases based on stale evidence" would demand.
Why did President Bush and Attorney General Ashcroft delay McVeigh's execution? To "protect the integrity of our system of justice," in Ashcroft's words, which he defined as "a more important duty than any single case." In other words, official malfeasance, undisclosed evidence and public uncertainty all demanded a timeout. Fair enough.
In reality, though, in capital cases "the integrity of the system of justice" is already nonexistent. Just since January, judges in Louisiana, Texas, New York and Massachusetts have ordered the freeing of two innocent death-row inmates and four innocent lifers--their stories full of coerced confessions, doctored documents and suppressed evidence. Consider Ronnie Burrell, released from Louisiana's Angola State Penitentiary in January, who came within two weeks of execution in 1996 for a murder he didn't commit. He had been arrested by a small-town sheriff trying to distract attention from his own corruption and was convicted on the purchased testimony of a career con man. All this came out only because his appeal was taken up by a Minnesota corporate lawyer in search of pro bono work who had a family connection to Louisiana.
Unlike Burrell, McVeigh's factual guilt is not in doubt (although the bomber's degree of culpability and mental state could yet form the basis for appeals of his death sentence). If the FBI's suppression of documents in his case, intentional or not, justifies a timeout, what about the rampant errors in dozens of frame-ups like Burrell's? Doesn't the systemic accumulated record of lost evidence, law-enforcement misconduct and outright factual innocence demand a timeout on all executions? In the final irony of the McVeigh case, which so often has managed to pull the system inside out, George W. Bush and John Ashcroft have now offered one of the best arguments yet for a national death-penalty moratorium.
Picture a grown-up discussion in Iceland, Portugal, Italy or Poland. The question is--what to do with a confessed mass murderer? The argument veers between different kinds of therapy and incarceration, and then somebody says: Let's kill him by playing doctors, and invite some people over to watch it on TV! All eyes roll toward the ceiling.
A few years ago, I took the tour that the federal government offers visitors to its facility in Terre Haute, Indiana (see "Minority Report," May 8, 1995). This rather depressed little burg, once celebrated as the birthplace of the mighty and humane Eugene Victor Debs, had become the lucky recipient of a state subsidy for a new death row. Local boosters talked vaguely of how this might bring much-needed jobs to the area. Now I notice that there has been a recent and well-publicized shot in the arm for the town's T-shirt and souvenir concessionaires. At the time, I remember wondering what I was being reminded of. It came back to me this week. In The Adventures of Augie March, old man Einhorn warns Bellow's young protagonist that the state buys beans in bulk, and well in advance, knowing that there are some people who can be counted upon to get themselves behind bars and come and eat them.
In something like the same way, if the federal government decides to join the death-penalty racket, it will sooner or later find someone to execute. And it can also count on a number of liberals, all troubled and conscientious, to bite their lips and say that perhaps just this once wouldn't matter. "Poster boy for capital punishment" is the lazy phrase that has been employed by several columnists and commentators to describe Timothy McVeigh, as they agonize about whether the state should have the power of life and death, not to mention the right to reinforce this power by means of compassionately conservative closed-circuit TV.
If McVeigh is the poster boy for anything, he is the poster boy for the feral American right. He is opposed to "big government," yet--in his most callous and disgusting phrase--he regards dead children as "collateral damage." (Where on earth did he pick up that obscene phrase, I wonder?) He is also the poster boy for a cult of death and revenge, which takes its tune from the state murder of civilians at Waco, Texas. His last request, or the closing point in his demented program, is a demand that society put him to death without further reflection. Now we can see the same Justice Department bureaucracy that brought us Waco, as it scurries to attend to every detail of the mass murderer's wish.
The McVeigh case makes absolutely no difference at all to the arguments against the death penalty. It is not news that we have depraved people among us; nor is it news that they like to taunt society with their combination of relish and indifference. The number of victims, the heinousness of the offense--these considerations do not and should not weigh in the balance. Ted Bundy could have been snuffed for any one of his crimes, or for none of them. Many people sentenced to death have doubtless been executed for crimes they might have committed but for which they were not convicted. Many living prisoners have committed appalling and evil crimes for which any sentient person would want them to die. And many murderers have been reprieved because they were condemned for the wrong murder, quite probably just as many as have been executed for the only murder they did not in fact commit. People sternly say that at least there is no doubt about McVeigh. Does that then nullify all their previous doubts on the death penalty?
The case can be put quite simply and intelligibly. It is not possible to be in favor of the death penalty à la carte. The state either claims the right to impose this doom or it does not. Nobody will ever be in possession of enough information to determine which convict is deserving of death and which one is not. (This is what people mean when they say rather falteringly that nobody can be "god" in such matters.) Subjective considerations about atrocity and wickedness are what the judicial system exists to prevent, or at the very least to contain. The argument about "closure" and satisfaction for relatives and friends is a sinister and bogus appeal to the irrational; the same argument would support a closed-circuit torture session for the condemned man, and it would not startle me in the least if McVeigh demanded this, too, as his right and his preferred means of checking out. Would we then defer to his expressed wishes and enact a scene of cathartic cruelty?
All but the most extreme pacifists will admit of a case where it might be immoral or amoral not to use force, if not to defend oneself then to defend others. All but the most fanatical opponents of abortion will allow for certain customary "exceptions," too well known to be rehearsed by me. The most committed vegetarian may still employ a leather belt if the consequence of not doing so is that his pants fall around his knees. But capital punishment is an either/or proposition, as every law-bound society except the United States has come to realize. The state, even in time of war, may not lawfully kill its prisoners. (And the populace has no business demanding that it should.) There are even some good utilitarian arguments for this. We don't know enough about serial killers and mass murderers, and, humanely treated, these very perpetrators might live to yield useful information. The possibility of rehabilitation cannot be excluded; it occurred even with some of the Nuremberg defendants and can also be accompanied by some worthwhile disclosures.
The utilitarian argument ought not to be the deciding one, though it's interesting to notice that even the basest version of it will vanquish the emotional nonsense put forward by Attorney General Ashcroft and his closed-circuit constituency. Ashcroft found the idea of further interviews and statements from the Terre Haute death cell too repulsive to contemplate. But as I write, and in full view of a mass audience, McVeigh is orchestrating the last chords of a fascistic anthem and hypnotically persuading the whole dignified force of law and order to join in.
Attorney General John Ashcroft says he does not want Timothy McVeigh to "inject more poison into our culture"--a striking statement, given the method of McVeigh's execution. Accordingly, he intends to deny permission for television interviews during the Oklahoma City bomber's final weeks on federal death row. (The Oklahoma legislature had a similar purpose in mind when it passed a resolution condemning a new book about McVeigh--thus bringing it more publicity, as a dissenting legislator pointed out.) At the same time, Ashcroft has made a dramatic cultural intervention of his own, authorizing the closed-circuit telecast of McVeigh's execution to perhaps 200 family members of his victims.
Both of Ashcroft's announcements show clearly how capital punishment is coarsening American institutions. Although most of the press coverage did not mention it, the Attorney General's diktat banning broadcast interviews applies not only to McVeigh but to all federal death-row inmates. However repellent the thought of a McVeigh TV interview, the ban is one more step in a repressive, systematic national clampdown on press coverage of prisons, which in some states, like Virginia, has led to a virtual blackout of inmate interviews. In the future, Ashcroft's interview ban could deny broadcast access to a federal inmate far different from McVeigh, someone with a legitimate claim of innocence or discrimination--a real likelihood given the nearly 100 death-row inmates in state prisons exonerated by new evidence and the large percentage of capital convictions overturned for grave constitutional error in the original trial.
The question of a public telecast of McVeigh's lethal injection is now moot with Ashcroft's closed-circuit plan, though the drumbeat for public executions continues--with some support among notable death-penalty abolitionists and civil libertarians like Sister Helen Prejean and Nat Hentoff. Televising executions, their argument goes, would either sicken the public or at least make Americans more accountable for what goes on in their name. We disagree. We see telecasts of executions as a fundamentally different matter from death-row interviews. Today's executions by lethal injection are exercises in the engineering of death, the institutionalizing of death, the bureaucratizing of death. Far from shocking America, viewing lethal injections through the distancing glow of a TV screen will further normalize state killing--as television ultimately normalizes the forms of violence it depicts.
Ashcroft did not invent closed-circuit telecasts of an execution--it has been tried at the state level--but it raises disturbing questions. For one thing, as several technological experts have pointed out, the phone-line transmission may not be immune to hacking or decryption--raising the prospect of a McVeigh snuff film in the near or distant future. More important, it makes this first federal execution, one moving forward even as Supreme Court Justice Ruth Bader Ginsburg joins the call for a death-penalty moratorium, a spectacle of individual vengeance for McVeigh's victims--a dangerous turn toward privatizing justice.
Far from shifting the spotlight to the survivors of Oklahoma City, Ashcroft's decision heightens the perverse amplification of McVeigh's voice initiated by his death sentence. The press spent the early weeks of spring speculating about how large a crowd would watch McVeigh take the needle. Instead of fading into anonymity, McVeigh has kept himself on the front page until his final moments and turned the chronicle of his last months into a testament for the militia fringe, who will make him a martyr. This is justice neither for McVeigh's victims nor for the country--and that is the real poison seeping into our culture from the federal death chamber in Terre Haute.
Almost every week, it seems, we get
to read about some state execution, performed or imminent, wreathed
in the usual toxic fog of race or sex prejudice, or incompetency of
counsel, or prosecutorial misconduct.
Take the recent
execution in Ashcroft country, February 7, of Stanley Lingar, done in
the Potosi Correctional Center in Missouri, for killing 16-year
Thomas Allen back in 1985. In the penalty phase of Lingar's trial,
prosecutor Richard Callahan, who may now be headed for the seat on
the Missouri State Supreme Court recently vacated by his
mother-in-law, argued for death, citing Lingar's homosexuality to the
jury as the crucial factor that should tilt poison into the guilty
man's veins. Governor Bob Holden turned down a clemency appeal and
told the press he'd "lost no sleep" over signing off on Lingar's
Is there any hope that the ample list of innocent
people either lost to the executioners or saved at the eleventh hour
will prompt a national moratorium such as is being sought by Senator
Russell Feingold of Wisconsin?
A year ago it seemed
possible. On January 31, 2000, Illinois Governor George Ryan
suspended imposition of the death penalty in his state on the grounds
that he could not support a system "which, in its administration, has
proven so fraught with error."
By June a Field Poll
reported the sensational finding that in the state with the most
crowded death row in the nation, Californians by nearly 4 to 1
favored stopping state executions to study how the death penalty was
being applied. The Field Poll respondents were told about wrong
convictions, also about appeals to Governor Gray Davis by religious
leaders for a moratorium. A poll at the end of last year, in which
California respondents were not offered this framework, put support
for a moratorium at 42 percent, just behind those opposed to any such
move. A national poll last fall found 53 percent for a
The discrepancy in the California polls
actually affords comfort to abolitionists, since it shows that when
respondents are told about innocent people saved from lethal
injection, often at the last moment, support for a moratorium soars.
It's a matter of public education.
But where are the
educators? Many eligible political leaders have fled the field of
battle, convinced that opposition to the death penalty is a sure-fire
vote loser. In the second presidential debate last fall Al Gore
wagged his head in agreement when George W. Bush declared his faith
in executions as a deterrent.
A few years ago Hillary
Clinton spoke of her private colloquys with the shade of Eleanor
Roosevelt. Their conversations left La Clinton unpersuaded, since she
stands square for death, as does New York's senior senator, Charles
Indeed, the death penalty is no longer a gut
issue, or even a necessary stand, for those, like Schumer, who are
associated with the Democratic Party's liberal wing. On February 12
the New York Post quoted Kerry Kennedy Cuomo, long known as a
leading death-penalty opponent, as saying that "it would be futile"
to try to repeal capital punishment in New York.
Cuomo, daughter of Robert F. Kennedy, told the Post that she
believes her husband, Andrew, a contender for the Democratic
nomination for governor, shares her views. "To tell you the truth, on
the death penalty, it's not as big an issue in the state as it was a
few years ago." Mrs. Cuomo's father-in-law, Mario, repeatedly vetoed
death-penalty measures during his years as governor.
line with Kerry Kennedy Cuomo's spineless stance, many liberal or
what are now cautiously called "human rights" groups have also found
it politic to sideline capital punishment as an issue. No better
illustration is available than the recent tussle over John Ashcroft's
nomination as Attorney General. Scores of groups flailed at him on
choice, racism and hate crimes, but not on the most racist
application of hatein the arsenal of state power: the death
Return for a moment to the fight to save Lingar's
life. Privacy Rights Education Project, the statewide Missouri gay
lobby group, endorsed Holden in his gubernatorial race. PREP,
however, was quite muted on Lingar's fate, taking little action
except to send a letter to the governor the day before the execution.
Another gay organization, the Gay and Lesbian Alliance Against
Defamation, the folks who want to shut down Dr. Laura, is a national
group but happens to have an office in Kansas City, Missouri. Surely
what prosecutor Callahan did to Stanley Lingar is well beyond
defamation. Where was the Gay and Lesbian Alliance on this case? Not
a peep from them. Noisy on hate crimes but silent on the death
penalty is the Human Rights Campaign, the nation's largest
The issue of capital punishment is
drawing much more attention these days. Just when help could really
make a difference, where are all these (ostensibly) liberal and
progressive groups? The Anti-Defamation League (all right, strike the
word "ostensible"), whose national director, Abraham Foxman, pulled
down $389,000 in 1999, was busy writing letters for Marc Rich. The
death penalty? The ADL endorsed Bill Clinton's appalling
Antiterrorism and Effective Death Penalty Act of 1996.
impetus given by Ryan last year could fall apart. Governor Ryan
himself faces difficult re-election prospects in 2002, and a
successor could rescind the moratorium. Liberals should abandon their
absurd and dangerous obsession with hate crimes and muster against
this most hateful excrescence on the justice system. Let them take
encouragement from the district attorney of San Francisco, Terrence
Hallinan, who told a San Francisco court on February 6 that he would
not participate in the capital sentencing of one Robert Massey since
"the death penalty does not constitute any more of a deterrent than
life without parole" and, among other evils, "discriminates racially
and financially, being visited mainly on racial minorities and the
poor.... It forfeits the stature and respect to which our state is
entitled by reducing us to a primitive code of
Evidence is mounting that the coming twelve months hold the best opportunity for a fundamental change in death-penalty politics since the Supreme Court reinstated capital punishment in 1976. You wouldn't know this from the sclerotic policies of the nation's pre-eminent political leaders. George W. Bush will take the oath of office bearing the all-time record for signing off on executions: forty in Texas this past year. President Clinton, meanwhile, leaves office playing politics with death as surely as he did in the case of Rickey Ray Rector in 1992. Faced with the first federal execution in forty years, Clinton had the chance to impose a moratorium and instead punted with a six-month stay, sticking George W. Bush with the troublesome case of Juan Raul Garza and thus in all likelihood leaving Garza to face lethal injection.
None of these men seem to have noticed how profoundly and rapidly the public's attitude toward capital punishment shifted in 2000. Thanks in part to the Illinois death-penalty moratorium imposed last January by Governor George Ryan, a majority of Americans now seem ready to consider whether capital punishment might be, as Robert Sherrill writes in this issue, a bad bargain in every way. In August an NBC News/Wall Street Journal poll found that 63 percent of Americans now favor a suspension of executions until the fairness of capital trials can be studied. This followed earlier Gallup polls showing that overall support for capital punishment has fallen by about 15 points in the past few years and that nearly half would abandon executions altogether if given the option of life imprisonment without parole. Even Texas's record number of executions bucks a national trend: Executions fell nationwide last year by 13 percent.
Forces and trends that will make capital punishment one of the defining issues of the coming year are converging from several directions. Bush's record in Texas will focus new attention on the Garza case. Even some previously silent Congressional Democrats may see cold political currency in seizing the initiative. Representative Jesse Jackson Jr. and Senator Patrick Leahy plan to reintroduce their national death-penalty-moratorium proposals, which will likely surface just as the Garza case approaches its deadline. Their bills will be propelled by a raft of credible recent studies on flawed convictions.
At the grassroots, capital punishment has suddenly caught fire: Thirty-eight municipalities and more than 1,200 organizations have passed resolutions or referendums calling for a national death-penalty moratorium, including cities on such traditional death-penalty terrain as North Carolina and Georgia. And in the media, the Chicago Tribune, whose revelation of systematic flaws in Illinois death-row justice prodded Governor Ryan to his moratorium, has expanded its ongoing inquiry into capital injustice to the national stage, most recently (December 18) detailing the 1998 Florida execution of Leo Jones, who may well have been an innocent man.
The death penalty has long isolated the United States among Western industrial nations, but Bush's elevation seems certain to escalate tensions. Protests about the plight of Mexican nationals on Texas's death row--people who often spend years without proper consular access--have recently driven a wedge between Washington and Mexico City. In Europe, US executions routinely attain a front-page status rarely accorded them on this side of the water. The European Union, which does not hesitate to sanction its own members for human rights violations, is looking for new avenues to pressure the United States. On December 19 United Nations Secretary General Kofi Annan endorsed the call for a moratorium.
The year 2001 could be the one in which America calls a halt to its long love affair with capital punishment. But the people must make it loudly clear to politicians that the death trip is over.
Conservative religious groups, representing an enormous constituency and wielding obvious political clout, may be the power that turns the tide of public opinion decisively against the death penalty. Strong support for capital punishment among Christian conservatives has long led an uneasy coexistence with ideals of life, love and tolerance, but until recently this hypocrisy stood unquestioned in the public arena. In the past couple of years, however, Catholic leaders have firmly established the Church's opposition to the death penalty, while leaders of the fundamentalist Christian community have experienced a dramatic turnaround in their stance on the issue. With the support of these leaders comes the possibility that one day soon the majority of Americans may actively oppose the death penalty.
The 1998 execution of Karla Faye Tucker, who became a born-again Christian while in prison, shattered faith in capital punishment in the right-wing evangelical community. Led by Pat Robertson, Christian conservatives had called for clemency in Tucker's case, citing her religious conversion as a reason for mercy. When their efforts failed and Tucker was executed, Robertson was horrified, denouncing the "animal vengeance" corrupting American society. Soon after Tucker's execution, the leading evangelical publication Christianity Today ran an editorial with the revolutionary headline "Evangelical Instincts Against Her Execution Were Right, But Not Because She Was a Christian." Criticizing capital punishment as discriminatory and vengeful, the editors concluded that "the death penalty has outlived its usefulness." To the delight of abolitionist groups, Robertson went even further this past April when he voiced his support for a general moratorium on the death penalty. This move, coming from a man who as recently as 1988 called capital punishment "a necessary corrective to violent crime," highlights just how radically discussion of the issue has evolved among Christian fundamentalists.
Catholics received a similar wake-up call in January of 1999, when the Pope made his opposition to the death penalty a public focus of his visit to the United States. In a speech in St. Louis, he used the strongest language against the death penalty he has ever used in this country, stressing that "the new evangelization calls for followers of Christ who are unconditionally pro-life...in every situation." He also made a dramatic (and successful) appeal to Missouri Governor Mel Carnahan to spare the life of death-row inmate Darrell Mease. The Pope's zeal, and his willingness to use his position to push his political views, underscore the potential influence of religious organizations on policy. While it is too soon to tell what impact recent events will have on the religious right, the Pope's speech spurred Catholics to assume an increasingly activist role. A few months after the Pope's visit, Massachusetts bishops fiercely denounced legislation that would have restored the death penalty in their state. Bernard Cardinal Law testified against the bill before the Massachusetts legislature and warned at a press conference that for a Catholic to support the death penalty would be "wrong, morally evil and a sin." Similar legislation had failed to pass by only one vote in 1997, but this time it failed by a seven-vote margin. Newspaper accounts noted a change in the public mood from two years earlier, citing the "moral authority" of Law's intensive lobbying as a possible reason for the change.
Growing political activism among Catholics and evangelical Christians builds on a strong tradition of religious anti-death-penalty activism. The national coalition Religious Organizing Against the Death Penalty Project provides an impressive array of educational materials for use in religious communities; it also sponsors conferences and demonstrations all over the country. Its conference in November 1999 was the largest gathering of abolitionist groups in the history of the movement. It focused in part on organizing techniques for religious communities. ROADP is supported by numerous grassroots religious abolitionist groups, among them People of Faith Against the Death Penalty in North Carolina. PFADP has organized more than sixty protests over the past two years and has persuaded three cities and one county in North Carolina to pass moratorium resolutions. Its moratorium campaign is linked to the larger Moratorium 2000 petition movement, led by Sr. Helen Prejean and the faith-based Quixote Center. This past fall, California People of Faith Working Against the Death Penalty held its annual "Weekend of Faith in Action," in which religious congregations across California spend two days organizing their local communities to take action against capital punishment.
Religious groups add energy and accessibility to a movement that not long ago seemed too radical to appeal to the American mainstream. If Catholics and fundamentalists follow their leadership in crusading against the death penalty, public sentiment may bring abolitionism back into fashion. Let's hope religious conservatives win this battle in their war for the American soul.
If you sent to central casting for a Midwestern conservative, they'd send back Governor George Ryan of Illinois. With his white hair, plain business suit and heartland directness, Ryan is nobody's image of a crusading criminal-justice reformer. Not even his own. "I mean, I am a Republican pharmacist from Kankakee. All of a sudden I've got gays and lesbians by my side. African-Americans. Senators from Italy, groups from around the world. It's a little surprising."
A year ago in January, Ryan took a step unprecedented in the history of American capital punishment: He issued an open-ended moratorium on executions in Illinois. The immediate impetus: the exoneration of thirteen death-row inmates. Ryan's predecessor, Governor Jim Edgar, called those exonerations proof that "the system works." Ryan saw something different.
Ryan's moratorium received international attention, but his journey to that decision remained a largely private matter. He did not make the decision in a vacuum--legislators, lawyers and the media played a big role--but what led him to break so definitively with the bipartisan pro-execution consensus, and where his thinking has gone since, strikes at the core of the shifting politics of death.
Ryan, whose family owned several neighborhood drugstores in Kankakee for forty years, joined the Illinois legislature in the 1970s as a staunch law-and-order man. "I believed some crimes were so heinous that the only proper way of protecting society was execution. I saw a nation in the grip of increasing crime rates; and tough sentences, more jails, the death penalty--that was good government." In 1977, after the Supreme Court lifted its ban on execution, a bill to reinstate the death penalty came before the Statehouse in Springfield. When an anti-death-penalty legislator asked his colleagues to consider whether they personally would be willing to throw the switch, Ryan rose to his feet with "unequivocal words of support" for execution--words he now regrets. The truth, though, was that Ryan never thought about capital punishment much, before that vote or for more than twenty years afterward, except as an abstract idea of justice. "I supported the death penalty, I believed in the death penalty, I voted for the death penalty."
In September 1998, as Ryan was running for governor, an Illinois inmate named Anthony Porter, a man with an IQ of 51, was scheduled to die for a 1982 murder. Two days before Porter's execution date his lawyers won a temporary reprieve. Northwestern University journalism professor David Protess turned his investigative-reporting students loose on the case, and by February the evidence they obtained left the newly inaugurated Governor Ryan reeling: a videotaped confession by the real killer, freeing Porter after eighteen years. "I was caught completely off-guard. Maybe I shouldn't have been, but I was. That mentally retarded man came within two days of execution, and but for those students Anthony Porter would have been dead and buried. I felt jolted into re-examining everything I believed in." At first, a conflicted Ryan waffled on a full-fledged review of Illinois's capital apparatus, but ultimately he endorsed one concrete initiative: an $18 million capital-crimes-litigation fund to insure that defendants like Porter, as well as prosecutors, have access to investigative resources.
That experience also collided, within weeks, with a gubernatorial responsibility Ryan himself had helped enact: signing off on an execution. In the spring of 1999 the case of Andrew Kokoraleis landed on Ryan's desk. Kokoraleis had been found guilty of the rape, mutilation and murder of a 21-year-old woman. "This was a horrible crime, and I am the father of five daughters. But after the mistakes the system had made with Porter, I wasn't sure what to do. I agonized. I checked and double-checked and triple-checked the facts." In the end Ryan went through with it, and Kokoraleis was executed. But, says Ryan, "it was the most emotional experience I have ever been through in my life. It all came down to me--the one fellow who has to pull the switch. Quite frankly, that is too much to ask of one person."
Within three months, two more Illinois death-row inmates were exonerated: one by DNA evidence, the other when a jailhouse informant's testimony was discredited. The state judiciary began its own investigation, and the calls for a moratorium grew. Still, "I was resisting." But one day "the attorney general called seeking a new execution date for an inmate. In my heart at that moment, I couldn't go forward with it." Political cynics wondered if Ryan shifted his position to deflect attention from charges of corruption against his Secretary of State, but Ryan's description of his internal turmoil is compelling. "I knew I couldn't make myself live through what I'd experienced with Kokoraleis," he says. "I just couldn't do it again."
In the fall of 1999 the Chicago Tribune published an examination of every Illinois death-row case since 1977, revealing, among other things, that more than one-third of all 285 Illinois capital convictions over that period had been reversed because of "fundamental error." It was the final straw. Last January Ryan acted, unilaterally issuing his moratorium. He also assembled a commission, including such notable death-penalty opponents as Scott Turow and former Senator Paul Simon, to report on the roots of Illinois's false-conviction record. Ryan's moratorium--combined with relentless reporting by the Tribune--has had a seismic impact on Illinois politics. The commission's hearings have insured that death-row injustice is never far from the front page.
Ryan's position has changed over the past year. In May he told Northwestern students he doubted there would be another execution on his watch. Now, he is convinced that "moral certainty" in capital cases isn't possible. And he's broadened his focus: "My concern is not just with the death penalty as a singular issue; it's with the entire criminal justice system. If innocent people are sentenced to death--cases that get all kinds of scrutiny--what does that say about invisible, low-level cases, drug cases and so on?" Ryan has ordered the first wholesale reassessment of Illinois's criminal code in forty years; when he talks about sentencing disparities for drug offenses he sounds more like Jesse Jackson than Dennis Hastert.
Ryan argues, with great passion, that criminal-justice reformers need to extend their traditional concern for the poor to middle-class and suburban defendants--building a bridge to new constituencies. "I have seen people charged in drug cases where down comes the full force of the federal Treasury," he says. "Someone who is poor will get a free lawyer. But a truck driver, for instance, will have to mortgage his house and sell his rig to pay a lawyer. Then, when he is found not guilty, where can he go to get that house back, to get on with his life?"
These days Ryan often gets asked how he feels about fellow Republican George W. Bush's love affair with executions. He says he's had a "short conversation" with Bush about it and quickly adds that he has far more authority than Bush to halt individual executions.
Ryan's transformation is a journey still in progress. Most Americans will never have the occasion to feel revulsion for their own role in an execution. But that "jolt" he felt, and the moral anguish that followed, mirror a growing public unease. "A lot of people are like me, I think. The death penalty was a fact of life," he says. "But as people become more and more aware of the unfairness, they become less enthusiastic." Ryan, the heartland conservative, has tested his lifelong support for the death penalty against the evidence, and the institution has come up short: "I question the entire system and the people connected with it."
When the history of this year's presidential campaign is written, the addiction of both Bush and Gore to the obsolete politics of capital punishment will rank high in the annals of moral insensibility and cowardice. In the final debate they fell all over each other agreeing that the death penalty serves as a deterrent to murder. Never mind the polls showing a steadily eroding public support for it and growing alarm about tainted convictions. Even Janet Reno admitted a few months ago that "I have inquired for most of my adult life about studies that might show the death penalty is a deterrent, and I have not seen any research that would substantiate that point."
Just how remote the capital-punishment rhetoric of this campaign is from reality is suggested by a ruling from the Court of Appeals for the Fifth Circuit in the case of Calvin Burdine, who sits on death row in Huntsville, Texas. Burdine's court-appointed lawyer, Joe Cannon, slept through long stretches of his trial, a practice frequently ratified by Texas courts [see Bruce Shapiro, "Sleeping Lawyer Syndrome," April 7, 1997]. Federal District Judge David Hittner threw out Burdine's conviction, but on October 27 a Fifth Circuit appellate panel reinstated it. The two-judge majority--including Judge Edith Jones, a favorite Republican prospect for the Supreme Court--claimed that the record failed to show whether the lawyer's naps came during "critical" phases of the life-or-death proceeding. The panel's lone dissenter, Judge Fortunato Benavides, wrote that the circumstance of Burdine's trial "shocks the conscience."
What is conscience-shocking is not just Sleeping Joe Cannon but the entire capital-justice apparatus. Recently the Quixote Center of Maryland released a dramatic study documenting sixteen people executed in six states, despite late-appearing evidence questioning their guilt or the exposure of massively unfair proceedings. A typical case in the report is that of Brian Baldwin, executed in Alabama in June 1999, even though his confession was coerced, his court-appointed lawyer never conducted an investigation, a co-defendant later confessed and exonerated Baldwin, and an Alabama court found that the prosecutor routinely practiced "deliberate racial discrimination."
Clearly, we need a national timeout on executions. Thirty-five cities nationwide--most recently Greensboro and five other municipalities in conservative North Carolina--have endorsed such a moratorium. As legal scholar Anthony Amsterdam said in October in his keynote address to the American Bar Association's annual convention, the system is "fatally unjust and prone to error." And that also applies to the federal court system, in which a recent study showed widespread racial bias in death sentences. The first federal execution since the Kennedy years is set for December unless President Clinton intervenes, as he certainly should. Senators Carl Levin and Russ Feingold and Representative Jesse Jackson Jr. have introduced legislation that, in varying ways, would put executions on hold. Their bills deserve vigorous support.
A postscript to the Bush-Gore deterrence theory: According to the FBI's Uniform Crime Reports, released in October, while violent crime is declining nationwide, it is up in the execution capital of the country, Texas.