Capital punishment will be one of the defining issues of the coming year.
The governor issued a moratorium on executions in Illinois a year ago, after investigative-reporting students and their professor saved an innocent man from the death chamber.
Christians are drifting away in their support of the death penalty.
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.
"The death penalty's very serious business, Leo," Governor Bush condescendingly told a questioner in the third presidential debate. "There've been some tough cases come across my desk. Some of the hardest moments since I've been governor of the State of Texas is to deal with those cases.... But my job is to ask two questions, sir. Is the person guilty of the crime? And did the person have full access to the courts of law? And I can tell you, looking at you right now, in all cases those answers were affirmative."
On camera Leo Anderson, the questioner, didn't seem to buy the governor's oft-repeated assertion, and he certainly wouldn't have if he had been privy to a recently released confidential memorandum on one of the toughest of those cases.
The memo went from Bush's then-general counsel, Alberto Gonzales, to Bush at 10:30 on the morning of April 3, 1997, only hours before David Wayne Spence was to be executed. Although the document was his first detailed look at the case and although the governor was Spence's only hope for a reprieve--the courts and Board of Pardons and Paroles having turned him down--this "very serious business" took Bush, according to his schedule for the day, all of half an hour at most.
I obtained the memo through the Public Information Act, Texas's FOIA. Not surprisingly, the Bush administration vigorously resisted its release. The document that went fleetingly across the governor's desk that morning is seven single-spaced pages, and although it works overtime to be unequivocal, it can't disguise or resolve the "tough questions" concerning Spence's guilt. The memo's author, Stuart Bowen, the deputy counsel charged with investigating the case, uses distortion, omissions, outright lies and an inappropriate adversarial bent to reach what must have been a preordained conclusion to deny a reprieve.
Writing several months after the execution and using the same information Bowen used, Bob Herbert in the New York Times concluded that Spence was "almost certainly innocent" and the case against him a "travesty." Many others, including Alan Berlow in Salon and a team of Chicago Tribune reporters, have agreed. But Bowen had been in the execution business with Bush long enough to know that the governor, preparing for a re-election campaign and in the starting blocks for a run for the presidency, would never go for a reprieve in the Spence case. And certainly not on the day of the execution, with families of the teenage victims of the crime for which Spence was about to die--a triple murder at a lake near Waco in 1982--in a motel in Huntsville ready to scream their heads off if the execution didn't go through. So Bowen did the following in the memorandum:
§ He opened by reciting the "facts" of the case as if he were a prosecutor giving a closing statement to a jury, brushing over developments favorable to Spence's claim that had surfaced in the fifteen years since the crime.
§ He bought the state's illogical theory of the case, that Spence was hired to kill a girl and mistook one of the teens for that girl (even though Spence knew the girl well and, according to testimony, hung out with the teens for hours before the killings), and ameliorates the illogic by dropping a crucial detail (he doesn't mention the testimony about hanging out for hours).
§ He put all the problems with the case under the heading "Publicity." This invidious rubric was intended in part to deprecate a Waco businessman, a conservative Republican, who had tried to get the execution stopped; he came to Bowen a week before the execution and laid out a detailed case for Spence's innocence.
§ He lied. For instance, he said the prosecutor turned over all the evidence in his possession to the defense, although the prosecutor explicitly told him he hadn't. He says the first lead detective on the case, Ramon Salinas, who sat in Bowen's office and told him without qualification that he believed Spence to be innocent, was fired for "incompetence," which is not true.
§ He relegated Spence's claim that he was railroaded by an unscrupulous sheriff's deputy and DA to three sentences in the conclusion, ignored voluminous testimony documenting this frame-up and swept away the allegations as "tertiary issues."
§ He rubber-stamped the courts' judgments (saying in a letter to me that those rulings are "the bottom line"), in effect negating the clemency procedure.
"Yet making decisions is what governors and chief executives do," the governor has written about that clemency procedure. "I try to do so thoroughly, thoughtfully, and fairly. I have assembled a top-quality staff that gets me accurate information and comprehensive briefings. I base my decisions on principles that do not change." Thoroughly? In thirty minutes? As to his top-quality staff and their accurate information, the memo supports the former (they are adept at distortion, etc.) and puts the lie to the latter. And principles? Let's just say they are very different from those of his honorary Illinois campaign chairman, Governor George Ryan, who has halted all executions in his state because he believes the execution of an innocent is truly a nightmare.
With its dissembling and obfuscation, the memorandum makes clear that when he denied Spence a reprieve, George W. Bush and his aides didn't know whether the man was guilty or innocent. A year after Spence's execution, Bush granted clemency to Henry Lee Lucas, the alleged serial killer, because, he says in his book, A Charge to Keep, he didn't know whether Lucas was guilty. But the politics of the Lucas case were different from those of the Spence case, and politics, Leo--unlike the life of David Spence--is very serious business indeed.
The seismic shift in the politics of the death penalty is staggering.
It's difficult to get over the idea that we failed Timothy McVeigh and that his execution fails us all. How deceptive a finale it is that leaves history neatly packaged in the cemetery of our imagination, safely removed from the festering reality of life. It happened, it's over, and we can now move on when we ought not to.
By killing McVeigh, we served only the purpose of avoiding responsibility for his creation. How convenient to not have a living reminder that this callow, awkward, unformed youth was a product of mainstream American culture--varnished by the "be all you can be" Army, no less--and not some easily dismissed dropout aberration. No, he was us in our darkest moments, even as we acknowledge gratefully that he was possessed by malevolent forces that the healthy can conquer.
If he was the devil, how did he get that way, this product of a strong Catholic family that raised a son to be a patriot, a son who then suddenly took his own government to be the enemy? What did he learn from us, his neighbors, the media and the government, that left him plotting in seedy motel rooms, manufacturing a weapon of mass destruction, while singing the disturbed loony tunes of the assassin?
His execution is to be denounced because it brings to an all-too-tidy conclusion a phenomenon that cries out for more complex and sustained examination. That's true in any capital case, but all the more so that 168 innocent men, women and children died at his hands, and scores of others were injured. It hardly serves their memory that McVeigh at worst will be venerated as a martyr by generations of lunatics to come and at best be dismissed as a weirdo actor in a script that is not of our hand.
We are told that the grieving relatives of those killed in the bombing need "closure," an unattainable state that has become the basic mantra of denial of harsh reality. It's a word now inevitably accompanied by the horrid phrase of "getting on" with the next phase of one's life, invoked even by McVeigh's lawyers before the execution to refer to their client's "future." But the so-called closure afforded by capital punishment, as some relatives of the dead have noted, cheapens the quest for real healing, which can never be an act of amnesia but rather requires the search for meaning in even the most dastardly of events.
For that we needed McVeigh alive, to be tormented every day in his own mind by the enormity of his crime, to the point where that smug self-righteousness of the killer would be pierced, and he finally would have to confront the pain of mass death as something other than a clinically ordered act of ideological game playing.
But we too, the uninvolved, needed his presence as an open wound to remind us of the pain that political madness, no matter its source, induces. In this case, the madness was, in effect, condoned when an unshaped youth was taught by his government to kill.
It should be a matter of deep national soul searching that we as a nation sent McVeigh to roam the desert on a Bradley fighting vehicle inflicting the "collateral damage" of the Gulf War. Did his military training prepare him to differentiate between what he did as his government's agent in Iraq and his own subsequent war on civilians? The absurdly celebrated mayhem of the Gulf War was the alternative to the college experience McVeigh never had. He was at least in need of a crash course on the distinction between what he called the "collateral damage" of the Oklahoma City bombing and the morality of shooting Iraqi draftees as they fled the battle.
Unfortunately, McVeigh completed his education at desultory gun shows in which patriotism often is equated with a defiance born of personal failure, and fire power is the means to dignity and freedom. That and the literature of angry white men, who believe their skin color and a musket should be all that is needed to make them meaningful players in the computerized global marketplace.
The merchants of madness will now exploit the government's execution of McVeigh as confirmation of their paranoia. Better to have had McVeigh as an aging reminder of how horrible the taste can be when the American brew is curdled.
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?
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