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Tuesday, December 27, 2005
From this day forward I shall no longer tinker with the machinery of death.While I acknowledge that the clear language of the 5th and 14th Amendments allows for the possibility of a capital sentence, I now find myself becoming an absolute opponent of the death penalty. My reasoning will be different than that of Blackmun. It will be moral and ethical, influenced by history and reason. It will also be because of recent events, including Abu Ghraib and the kidnapping of Tom Fox. And although a majority of Americans still support the death penalty in at least some cases, I am no longer sure I can morally offer support beyond a reluctant vote for anyone who is unwilling to challenge the rationale for capital sentences. In this piece I will explore my reasoning.
As an adolescent raised in a Jewish family that attended a synagogue that included survivors of the Holocaust, I felt that any ex-Nazi the US could capture should be executed. The Eichmann trial in Israel took place my sophomore year in high school, and I remember very few of my acquaintances who opposed his sentence of death. I started with that as a baseline - that there were some acts which were so heinous that the only was of addressing them was by execution. In my early readings of the Constitutional material I was influenced by the clear language in the Bill of Rights, reinforced by the post-Civil War 14th Amendment, which allowed a sentence of death provided due process of law had been followed. It was only with the issuance of the verdict in Gideon that I first began to consider other possibilities.
Gideon v Wainwright as the case was called in SCOTUS (it was originally filed as Gideon v Cochrane) did not address capital cases. It extended the right of counsel at trial in all state felony cases, thereby overturning a previous case. Betts v Brady asserted in 1942 that a person accused of a felony was not entitled to a free lawyer absent the possibility of a capital sentence. Since my mother was a lawyer (at the time of the issuance of Gideon she was an Assistant Attorney General for New York State) it was logical for us to discuss what turned out to be the sole unanimous decision of the Court term. Although she was no a criminal specialist, she was an appellate specialist, and thus I learned that the 1932 case of Powell v Alabama had asserted that people were entitled to lawyers in most criminal proceedings, but left implementation of the decision up to the states, and that historically even though 12 of the original 13 states had considerably broadened access to lawyer beyond British practice (which until the 1830's did not allow a lawyer in most felony cases), there were no provisions for free lawyers for those who could not afford a lawyer. When I asked, my mother acknowledged that given the complexity of our legal system it was inherently unfair for anyone defending themselves not to have access to a lawyer.
The logical question that followed our discussion of Gideon was whether there had been people sentenced to death who had not had the assistance of counsel. She acknowledged that prior to Betts in 1942 there were cases in state courts. I asked why there should be a distinction between a death sentence and a sentence of life without the possibility of parole, and her response was that it was largely to assuage the blood lust of society.
I was at the time approaching my 17th birthday. As a senior at Mamaroneck (NY) High School I was taking a very rigorous AP American History course with a very tough teacher who made us read - original documents, commentary - and think and argue. We had been through a lot of constitutional material, and although we did not discuss this case, what we had done in that class of very bright students (the "weakest" school any of the 13 of us attended was U of Wisconsin, which had a superb history department -- there were people going to Princeton, Swarthmore, Haverford [me], MIT, Cornell, Harvard [Tom Horne, now Superintendent of Public Instruction in AZ], etc.) had prepared me to wrestle with the issues this case presented to me.
Haverford was at the time of my entrance in 1963 still officially Quaker. While it would be another 39 years until I officially applied for membership (at which time the chairman of my committee was my freshman roommate), I began to be influenced by Quaker thinking and practice. I remember one debate in our freshman corridor late at night that addressed the death penalty. I do not remember all of the details, but I do remember arguing that there certainly some cases so horrible that the only recourse for society to take was to execute the person, lest people who were angry withdraw their consent to the social contract and take matters into their own hand. I was challenged in return by someone, I do not remember who, asking me if that therefore justified the lynching of blacks in the South because they had been accused of raping a black woman. My response at the time was to note that lynching was an extra-legal action, but that if a society thought that rape was a horrendous enough crime, why would it be wrong to apply a death penalty? I was challenged again - what if the application of a sentence of death was never applied to a white raping a black but only to blacks raping whites? Having spent the summer before college very active in Civil Rights, including attending the August 28 March, that challenge brought me up short. I did not have an answer, and it was the first time I encountered what for many was to become a key part of their argument against the unfairness of the death penalty, how it was unequally and inequitably applied.
And yet, I held to my position that there were cases for which there should be no argument. I thought back again to Eichmann, and I would argue that had Hitler been captured, how could we reward him by keeping him alive as a prisoner.
I have long been interested in the workings of SCOTUS and our legal system. Thus when the Furman v Georgia decision was issued in 1972 (when I was at Haverford for the 3rd and final time - I did not graduate until shortly before my 27th birthday) it caught my attention for several reasons. First, the successful advocate, Anthony Amsterdam was, as I soon found out, a graduate of Haverford. Second, two justices, Brennan and Marshall wanted to go much further than the per curiam decision and argue that the death penalty should be unconstitutional in ALL circumstances. It was the first time I had been aware of members of the highest court taking such a position. And yet, despite 6 justices having found the application of the death penalty unconstitutional in 1972, 4 years later it was reinstated in a 7-2 decision (Brennan and Marshall dissenting) in Gregg v Georgia. Here I offer the summary found at www.oyez.org (an invaluable resource for those interested in Court cases):
Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as "cruel and unusual" punishment?
No. In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed. Georgia's death penalty statute assures the judicious and careful use of the death penalty by requiring a bifurcated proceeding where the trial and sentencing are conducted separately, specific jury findings as to the severity of the crime and the nature of the defendant, and a comparison of each capital sentence's circumstances with other similar cases. Moreover, the Court was not prepared to overrule the Georgia legislature's finding that capital punishment serves as a useful deterrent to future capital crimes and an appropriate means of social retribution against its most serious offenders.
Of course, it was easy to see some holes in the reasoning used by the majority. Still, the idea that some crimes were so heinous that - provided care was applied in determining the sentence of death - reinforced what I had believed for a number of years.
Over the years I continued to read when death penalty cases arose. I found myself becoming more inclined to look for reasons not to execute, although I probably could not have given a coherent reason. Part of what was influencing me were changes in my personal life.
In 1974 after some major turmoil in personal life I was baptized as an Episcopalian. I spent that summer in an Episcopal Benedictine monastery. I did a lot of reading, praying and meditating. And that September, I began the relationship that let to Dec. 29, 1985, when Leaves on the Current and I were married (and don't worry - we have a significant celebration planned for this Thursday). Both of these events began to shape my thinking, even before the issuance of Gregg. I began to study scripture systematically, even obtaining a Masters of Religious Study with a concentration in scripture from a Roman Catholic Seminary. Several things struck me in my studies. I found it difficult to understand how someone who seriously read scripture could be blasé about the death penalty. After all, Jesus had said the vengeance belonged to the Lord, and at least for me part of the justification for capital punishment had been satisfying the need for vengeance. There was also the clear example of the intervention of Jesus to stop an `execution" (or lynching, depending upon your interpretation) of the woman taken in adultery. His challenge that only those without sin be willing to cast the first stone brought me up short. From a Christian perspective, it raised the very real issue of who could ever apply such a harsh punishment. It challenged not only the death penalty -- if one thought about it, it challenged the entire nature of our criminal justice system. While I did not attempt to resolve the issue systematically, it caused me to do some reading (while in the monastery), about my Jewish background. I came to understand that while the death penalty existed in theory, there was little evidence of its application in any circumstance where Jews had the ability to administer their own laws (here I remind readers that it was the Romans who actually, according to the Gospel account, executed Jesus). Judges would always look for extenuating circumstances. And then I remembered debate I had skipped over in 1961 and 1962 about Eichmann, about whether even for him it was appropriate for Jews to execute someone. I would later read Hannah Arendt (and still later have one very brief conversation with her about this in 1971) in which she presented the case that Israel, having convicted Eichmann, should have considered simply turning him loose, since no punishment applied by men could hope to erase the damage he had done - establish his guilt legally, but not attempt to punish for it (my memory of her actual words have faded).
My relationship with the woman who would eventually officially become my partner for eternity also began to influence me. She is opposed to any taking of life, and in this she is consistent, opposing both the vast majority of abortions (exceptions for rape and to save the life of the mother) and capital punishment. We argued on this subject over many years - we both take issues we view as moral very seriously.
In the late 1970's for reasons I will not hear rehearse joined the Orthodox Church. There I learned that early Russian Christians took so seriously the idea of resist not evil that two princes, Boris and Gleb, refused even to defend themselves when the assassins sent by their brother came to kill them, and that for most of its history after the conversion of Vladimir in Kievan Rus Russia did not have a capital sentence. I began to realize that there was a distinction between life with parole and the death sentence -- the latter was a denial of the redemptive possibilities in Christianity.
I began to approach a position, but was unwilling to follow it to its logical conclusion. It seemed clear to me that to argue any act (or even series of acts) committed by an individual could irrevocably put him beyond the reach of God's forgiveness (in Christian terms, the saving self-sacrifice of Jesus on the Cross), was a blasphemy - such reasoning made that individual equally powerful with Jesus / God. That any individual could reject the mercy and love of God was the essential element of human freedom, and without that freedom man could not choose to love God -- after all, love is the act of a free creature. I found examples of Orthodox theologians who wrote speculatively that even Satan would eventually be redeemed, that even the Devil had not irrevocably placed himself beyond God's redemption. And I encountered a piece of canon law ( not consistently enforced) that went back to the very earliest years of organized Christianity, that any many who had spilled blood was ineligible to be ordained presbyter (priest) - the logic was that one who had spilled blood could not properly perform the rites of the bloodless sacrifice of the Eucharist.
I still was not totally opposed to the death penalty. I was willing to question it, but at least in theory could imagine serving as a juror and voting for such a sentence. I probably first expressed this when I went with my wife to a meeting of a Virginia group opposed to Capital Punishment - it was in a Church on Leesburg Pike in Bailey's Crossroad. I do not know if Tom Fox was at that meeting, although Leaves knew him at that time from their joint activity. This was sometime in the 1980s. Virginia allows exclusion from capital cases of any potential juror who has a philosophical opposition to the death penalty. I remember telling them that I was probably an important ally, since none of them could ever serve on a capital case - their membership in what I believe ws then called VASK (Virginians Against State Killing) was sufficient grounds for their exclusion. Were I asked if I belonged to or supported any such group I could truly answer in the negative, as I could similar answer if asked if I had a philosophical opposition to the death penalty. If voir dire went no further, I would be acceptable to the prosecution.
But by now my position had altered -- I would still grant the idea of the death penalty in theory -- for the Hitlers, Pol Pots, and Stalins. But I had already decided that there was no case under American jurisprudence of which I was aware, recent or historical, for which I was willing to support a sentence of death. I knew it was unlikely that I would be sufficiently questioned that this would become clear.
Sometime in the 1980's, after 1985, I was called for jury duty. I do not swear an oath, but affirm. In my first voir dire, I had to remind the judge that I had that right under Virginia law - that brought attention to me, attention that would eventually lead to my being disqualified from every criminal pool by the prosecutor (I found this out from a friend in the Clerk's office): in Virginia, for a normal 12 member jury, 18 people are seated at a time, and each side MUST disqualify 3 -- that hides who is being disqualified by which side. I was always struck by the prosecutor. I have never liked the idea of swearing, had noted that the Constitution allows the oath of office to be administered by oath or affirmation, and as a Christian (which I still was) took seriously the admonition of Jesus not to swear like the Pharisees but to simply let me yeas be yeas and my nays be nays.
I tell you this because it was the prosecution which struck me from a capital case. Realistically, it should have been the defense, save for a memory lapse. The case was of a separated and getting divorced couple. He had gone to her home to get her to sign some papers, and in a fit of rage because he feared losing custody of their son had killed her. One question asked of all jurors was whether they had ever known or experienced such a case in any personal fashion - a legitimate concern to be explored. I answered in the negative because of a memory block.
In 1985 I had wandered out of my office on the Monday after western Palm Sunday to buy a Philadelphia Inquirer -- it was that night that Georgetown and Villanova were to play for the NCAA division one championship in basketball, and I wanted to read how it was being covered in Philadelphia, especially as I had a rather large bet with a coworker who was a Georgetown supporter. The lead story was of a shooting the day before at a suburban church. An estranged husband had shown up where his wife and two little girls were attending church with her parents. He shot and killed all 3 of his family with a rifle, turned the gun on himself, but at the last second flinched, shot in the air, then threw himself backwards. Her name was Linda Moser, and I had trained her as a commuter programmer. She was my immediate subordinate for several years, and there were marital difficulties even then, as she had outgrown him.
I called my former place of employment. I had left that office in 1982 to move to our Washington Office, and had left the company in 1984. People were in shock. So was I. I took the afternoon off because of how it struck me, and even that night as Villanova shot 10 for 11 in the second half I could not totally lose myself in the game.
Returning to my jury service, had I not been struck by the prosecution, one could argue that my participation in the deliberations might have served as a basis for overturning the verdict, except for one thing -- I would not even in that case have voted for the death penalty. As it happens my memory of Linda's death came back about the time the jury retired for the sentencing phase (and he was sentenced to death, even in liberal Arlington). For all practical purposes I would not vote for a death sentence, but I was still not philosophically opposed.
My position had remained the same over the many years. And then one month ago yesterday, Saturday Nov. 26, Tom Fox and the other CPT team members were seized in Baghdad. I learned of it early the next morning via email. I did not know Tom that well, although we had both attended Langley Hill Monthly Meeting. Our little Meeting community quickly became involved in addressing the needs of Tom's family, our members, and responding to the news. At first we attempted to keep the names of the individuals and the organization out of the news, although by the start of the work week that was already becoming impossible as events overtook things. I had told my wife confidentially by phone midday Sunday which is when she reminded me of her knowledge of Tom through their anti-death penalty work.
As the next few days path, and I learned more about Tom, and the consistency of his life in opposing violence, I began to reexamine some of my own attitudes. It was while conversing with the spouse of one of the members of his support committee that I came to realize that I was having my own moment like Harry Blackmun. In my case it was not the issue of tinkering with the mechanisms of death. It was a realization that my long espoused position was untenable. I could no longer make the distinction between American jurisprudence, where I was reluctant if not yet absolutely opposed to applying a capital sentence, and other cases overseas.
I do not consider myself a Christian per se, but clearly there are parts of Christian belief that influence me. As a longtime seeker, and several times teacher of comparative religion, I am also influence by the teaching of other great faith traditions, and the non-violent part of the Buddhist tradition also has helped shape some of my attitudes, as have my Jewish background and quite obviously my current Quaker affiliation and commitment.
While recognizing that other may disagree with my reasoning, I now find the idea of state sponsored killing repugnant and unacceptable. Not in my name, as the Quaker songwriter John McCutcheon wrote in a song so entitled. I find, even absent Christian theology, something inherently immoral in the idea that one group of humans will irrevocably decide that another human is beyond being changed, of repenting, of becoming productive. In that sense I am also probably also opposed to life with no possibility of parole - I might set very high standards in some cases, with a long period of incarceration, but I have trouble with the idea of permanent incarceration for similar reasons.
It is not merely that mistakes can be made. I look at the reasoning that has been used in capital cases and I am appalled. In Herrera v Collins Scotus ruled that once a person has been convicted the presumption of innocence disappears and thus the person is not necessarily entitled to continued legal action (e.g. habeas corpus suits) to introduce further evidence to demonstrate innocence. While O'Connor's concurrence notes
the execution of a legally and factually innocent person would be a constitutionally intolerable eventsimilar language does not appear in Rehnquist's majority opinion, which allows for the possibility of the execution of an innocent person. This to my mind allows for something totally abhorrent - at least to my moral sensibilities. And I find it shocking that there are prosecutors who oppose DAN testing or reopening of cases in any fashion which might demonstrate that an innocent person has been executed.
I used to make a distinction between US jurisprudence and certain "horrible" actions in other nations, such as the Nazis. I can no longer accept that reasoning. I recognize that it bears a striking parallel to the arguments of the current administration justifying actions done outside the US, whether at Guantanamo or Abu Ghraib, that our laws do not apply (even thought the actions are being done by US government officials in the name of the nation and the people). It would parallel their false argument that we have to fight terrorism [how od you fight a noun?] over in Iraq so we won't have to fight it here.
Immoral actions remain immoral, regardless of where they occur, despite any justification we may offer for their occurrence.
Finally, my increasing reluctance to offer political support (beyond a reluctant vote) for any politician unwilling to take a stand on this issue. We desperately need moral leadership in this nation. At one point the vast majority of people tolerated chattel slavery, lesser rights for women, many other things the vast majority would now find repugnant. Without someone willing to take a stand, to provide leadership, such change does not occur. After all, it is hard to imagine someone (except perhaps John Yoo) attempting to legally justify sentencing someone to death without having the full assistance of competent counsel [yeah, Pricilla Owens didn't think a lawyer sleeping through the trial denied the assistance of competent counsel - so there are others].
I think people are willing to be challenged. Russ Feingold was alone in opposing USA PATRIOT Act. He was targeted in his reelection, yet ran stronger than he ever has. And soon we will have one or more clear examples of innocent people who have been executed, and that may sway some people away from their support for death sentences.
But my argument is against execution of those who are clearly guilty, and even those who do not repent. My argument is not about them -- it is about us. It is about how our insistence on maintaining this judicial punishment diminishes us in the eyes of most of the civilized world. That is important. But it is insufficient.
If we grant that there are certain things that are not acceptable for moral and humane people to do, such as own another human being, then we need to examine all of our actions. How can we justify torture? How can we justify denying basic rights to those who are not citizens even as we require them to abide by the same laws and pay the same taxes? How can we decide that some human beings are not fully human beings, and thus are entitled to be treated with less humanity?
I realize this is very long. I do not expect that many will take the time to read it, or that it will receive much commentary, or stay visible in any place it is posted for any period of time. I feel that it is a statement I had to make. I am doing so in environments devoted to political issues because this is as important a political - and moral - issue as we face.
I accept that others will come to different conclusions, for what they will see as very good reasons. As for me, I can no longer accept the idea of judicial killing.