I come to you having witnessed six executions and engaged in 35 years of dialogue about the death penalty. I’m on fire to abolish government killing because I’ve seen it far too close-up, and I have a pretty good idea by now how it works—or doesn’t. I wasn’t at all surprised to see Donald Trump order 13 federal executions carried out before he left office: He had the discretionary power, and he used it. He was operating within the hopelessly flawed guidelines for government killing that the Supreme Court set forth in 1976 in Gregg v. Georgia, when it reinstituted the death penalty. After a national hiatus on executions from 1972 to 1976, Gregg renewed our capricious, racist, broken death penalty system, which has caused and is perpetuating unspeakable suffering.
I got catapulted into this debate in 1984, after I witnessed the electrocution of Elmo Patrick Sonnier in Louisiana’s killing chamber. In those days, it seemed almost everyone in Louisiana thought the death penalty was a just and appropriate punishment for murder. Sonnier and his brother, Eddie, had killed two teenage kids—shot them point-blank in the back of their heads, savagely ripping these tender young buds from the tree of life. How dare anyone say that this monster of a murderer shouldn’t pay with his own life for his crime? As a Catholic nun, what did I know about the criminal justice system? I had spent my adult life teaching kids or leading adult Bible groups in a white suburban Catholic parish. “The nun is in over her head,” Tim Robbins quipped as he worked on his film adaptation of my book on the case, Dead Man Walking.
And I most assuredly was—but I’ve stayed with the issue, participated in the abolition movement, and rejoiced as state after state shuttered their killing chambers. And year after year, fewer citizens support death as a punishment. A Gallup poll in late 2019 found that, when asked to choose between the death penalty and life without parole, just 36 percent of Americans supported death. In 2020, there were a total of seven state executions, the lowest since 1983. And reform prosecutors, who pledge never to use the death penalty or to seek it only sparingly, are on the rise—even in Virginia, a former slave state that has executed 113 persons since Gregg was decided, second only to Texas.
As a society, we are coming to realize that giving government officials authority over the life or death of our citizens is unwise. Since 1973, 173 wrongly convicted death row inmates have been lucky enough to emerge from their death dungeons after the mistakes and lies that put them there were exposed. For every nine of the 1,532 people executed since 1973, one person has been exonerated.
That brings us to Gregg’s principal flaw, which makes implementing the death penalty in light of the constitutional requirement of equal protection under the law virtually impossible. Gregg’s fuzzy criterion—that a death sentence should be imposed only on the “worst of the worst”—is impossible to decipher. But over the last 45 years, a profile of the “worst of the worst” has clearly emerged: poor people who cannot afford an attorney to defend them; people who are mentally ill; those who were broken by neglect, abuse, and violence in their childhood; and the most glaring, pervasive characteristic of all, those who killed white people.
Gregg bestowed upon prosecutors the power of death selection; if they choose not to seek death, the government will not kill the defendant. Prosecutors and state attorneys general have embraced that power in Texas, which has carried out 570 executions since the 1970s, over a third of the total; four more people are slated to die in 2021. Today there are 205 Texas death row inmates, many of whom are in the last stages of their appeals and at the mercy of the attorney general and the avidly pro-death-penalty Republican governor, Greg Abbott, just as the federal inmates at the United States Penitentiary in Terre Haute, Ind., were at Trump’s mercy.
Gregg reinstated this deeply flawed punishment, which is subject to bias and human error and can be wielded by capricious presidents and governors. Thus we come to Trump’s killing spree, which ended a 17-year hiatus in federal executions. Lisa Montgomery’s petition for clemency pleaded with Trump to take into account the violent sexual abuse by her stepfather and sex trafficking by her mother. Montgomery’s crime was unspeakable: killing a pregnant woman and cutting the fetus from her womb to claim as her own. By any reckoning, that was the act of a crazed person—exactly what her lawyers pleaded in court in efforts to save her life. But the “worst of the worst”? She is, her stepsister said, “the most broken of the broken.”
A lawyer on Montgomery’s team told me that when Lisa learned her death date had been postponed from December to January, she paused and barely whispered, “Just eight days…” Joe Biden would be inaugurated on January 20.
We now have a chance with President Biden, who campaigned on ending the federal death penalty. He can assure death row inmates that they need not fear execution. But I hope he goes further and uses his power to commute their death sentences to life.