Who Owns Death?

How many stories -- of "foot long blue and orange flames shot from the right side of his bobbing head" or exonerated criminals or retarded prisoners saving their last meal for "after they get back" -- will the American people have to hear before they convince their elected officials that capital punishment serves no purpose other than revenge?

If recent polling data and a scan of the media are any indication, that day could be in the not-too-distant future. A recent Gallup poll revealed that, if presented with the possibility of life without parole, 50 percent of Americans would favor it over the death penalty. A July Wall Street Journal poll found that 63 percent favored a moratorium, an opinion shared by Illinois Governor George Ryan, who, a year ago, put a hold on executions in his state until a panel of experts find out how to fix a system that is not working and is losing support rapidly.

In addition to Ryan's courageous stand -- for a conservative Republican, such a move could have been political suicide -- a grassroots movement to abolish the death penalty, comprised of religious leaders, celebrities, lawyers and victim's families, is gaining steam.

Buoyed by poll data that shows support for the death penalty declining, the abolitionist movement has increased in size in recent months despite the election of George W. Bush, who has overseen 152 executions since becoming governor of Texas. While most Texas executions occurred under the media radar for years, two recent executions (Karla Faye Tucker, whom Bush smugly mocked in an interview, and Gary Graham, whose execution drew heavily reported protest) brought attention to Texas' execution practices. And while Bush continues to defend his stance, "civilized" nations around the world have done away with the practice. Only countries often cited by the United States as being "human rights violators" -- like Iraq, Iran and China -- still regularly carry out executions.

Although Bush has come under fire from abolitionists for his death penalty record, his presidential predecessor was not much better. Bill Clinton, while running for president in 1992, flew back to Arkansas to oversee the execution of a man so profoundly retarded that he did not comprehend that he was being executed; he asked that his piece of pie be saved for when he returned to his cell. In 1994, Clinton signed the Antiterrorism and Effective Death Penalty Act, which limits the habeas corpus rights of murder defendants.

Some in the death penalty abolitionist movement, however, think that Bush's record could help their cause.

"I think the election of George W. Bush, and his appointment of John Ashcroft, will highlight, rather than undercut, the problems with capital punishment," said Ronald Tabak, an anti-death penalty lawyer from New York City. "While the judicial appointments likely to emerge from this administration are likely to be horrible, and while its policies like the federal death penalty are likely to be abysmal, these will be implemented against a backdrop of increasing public concern over the fairness of the death penalty, and a growing awareness that the way Bush let it be implemented in Texas was extremely zealous and unfair."

Judging from the posturing of politicians, supporting the death penalty is still a means to an end. But the grassroots groundswell could gain enough momentum in the coming months to force many pro-death advocates to reassess this polarizing issue.

The death penalty abolition movement -- headed by high profile "celebrities" like M*A*S*H's Mike Farrell, Dead Man Walking author sister Helen Prejean and singer-songwriter Steve Earle -- convened for a convention this past November in San Francisco. While the movement contains many different factions and sub-groups, the basic tenants of the movement are based on moral, intellectual, spiritual and practical reasons:

-- Morally, the death penalty is seen by many as continuing the "cycle of violence." Many victims' families and clergy have objected to the death penalty, stating that executions are carried out in the name of revenge only. As many abolitionists point out, revenge doesn't bring anyone back from the dead.

"The victims' reconciliation segment of the abolitionist movement is very important in buoying the push toward a moratorium," said Tabak. "This segment of the movement helps, in a very credible way, to undermine the idea that if one really cares about the victims or their survivors, one must inevitably support the death penalty. The fact is, as the Robert Lee Willie case [Robert Lee Willie, featured in Prejean's book, is the model for the Sean Penn character in the film Dead Man Walking. – ed.] illustrates, that even when someone is executed, that does not bring back one's loved one and does not really bring meaningful 'closure'. Moreover, what about the victims' survivors in the vast majority of murder cases in which there never will be an execution? We should focus on how to best help all murder victims' survivors deal with their losses."

-- Legally, many trial lawyers consider the death penalty to be random (Justice Stewart, in Furman v. Georgia, which halted executions from 1972 to 1976, stated that the application of the death penalty, as far as it's randomness, was like being struck by lightning) and racially-biased. State laws differ, but are similar in one area: their arbitrary nature. Juries are chosen to be pro-death and judges must be "tough on crime" to be re-elected. Those facing the death penalty are, a majority of times, poor, African-American and represented by court-appointed attorneys who are not necessarily equipped to defend a capital case. In sum, the process is front-loaded in favor of death, the punishment is not fairly handed out and innocent people are sometimes executed.

"As I worked on these cases, I discovered, to my surprise, that the manner in which the death penalty was being carried out was considerably less fair, and far more arbitrary and capricious, than I would have thought possible," Tabak explained. "The manner of the unfairness was not the same in every case, but there was always at least something incredibly unfair in each case.

"As a result, I came to the conclusion that in addition to trying to find additional lawyers to handle cases of death row inmates, it was vital to educate the legal profession and the public at large about the actual manner in which the death penalty was being implemented."

-- Economically, the death penalty has long been proven to be more expensive than life imprisonment. For instance, a recent New York Daily News article predicted that in one example, the case of convicted murderer Robert Shulman, the tab could reach $408 million by the time he is executed. A Dallas Morning News figure placed the cost of an execution at three times the cost of imprisoning someone for 40 years.

-- Criminal justice experts have determined that capital punishment is not a deterrent. In Florida, for instance, the murder rate rose 59 percent in the three years after the death penalty was reinstated in 1979.

In addition to these arguments against capital punishment, the abolitionist movement proposes that a state-sponsored death is the responsibility of every citizen. The blood, in essence, is on all of our hands. To that end, Greg Mitchell, along with Robert Jay Lifton, has written Who Owns Death? Capital Punishment, The American Conscience, and The End Of Executions (Morrow, 2000). Mitchell and Lifton make a strong case for the abolishment of the death penalty that is based on facts and history. While they are clear in the book's intention -- to exploit the flaws of capital punishment and assess the diverse abolitionist movement -- they freely admit that the crimes committed by many of the inmates on death row are, indeed, heinous. Mitchell spoke on some of the issues raised in Who Owns Death?

Brett Essler: Obviously, at the time the book was written George W. Bush was not yet President. Since he makes no apologies about capital punishment in Texas -- in fact, he is very arrogant about it -- will he bring that tenor to the fore at the national level via his selection of staff, like Senator John Ashcroft, and Supreme Court judges? How far will that set back the positive discourse you describe in Who Owns Death?

Greg Mitchell: George Bush alone cannot set back the momentum moving toward abolition. First, the President has very little role in this killing process, although it will be interesting to see if he goes ahead with the first federal execution in decades later this year. It's a state matter, and more and more legislatures are considering moratoria or outright abolition, more governors are granting clemency and judges and juries everywhere are more and more reluctant to actually sentence convicted killers to death. Second, even if, let us say, Bush sets a bad moral example and tone on this issue as President, it won't reverse the trend away from execution we have seen in public opinion polls. The public simply wants an alternative to state killing, in the form of life without parole, or at least a halt or moratorium while the issue is studied and settled.

Essler: In the book, you point out that one of the flaws of capital punishment is that it is sentenced arbitrarily. Will this be an impediment to future executions taking place or will citizen apathy, whether purposeful or systemic, allow this law to stand as it is?

Mitchell: Some prosecutors will never bring a capital charge while others are all too eager. It merely makes manifest the inherent unfairness of the system, in every state.

Essler: What could the recent controversy over Timothy McVeigh's death sentence do for the death penalty abolitionist movement?

Mitchell: I'm not sure his execution would have much effect. His sentence became a kind of litmus test...if you are against his execution you are TRULY anti-death penalty (at that time about 20 percent would have spared him). The biggest effect would probably be that he would be a martyr to his cause, whatever that is. That's one of the many problems in putting people to death.

Essler: One of the most disturbing aspects of the death penalty is the way the juries in capital cases are stacked to promote death. In the book, you call them "automatic death penalty people." This is, obviously, one of the biggest obstacles to abolition. How can the abolitionist movement subvert this system?

Mitchell: Well, I know some anti-death penalty people, as individuals, try to get on capital juries by fudging their beliefs, then voting for life. They rarely succeed. But it's such an unfair setup, where only those who are pro-death penalty are allowed on these juries. So, by definition, it cannot be a "jury of your peers" since at least one-third of all Americans now oppose the death penalty.

Essler: Given the court's recent partisan rulings in the election process, can you assess -- taking into account past rulings and the shifts in public opinion -- where they might rule on death penalty cases in the foreseeable future?

Mitchell: Some of the conservative U.S. justices nevertheless have expressed doubts about the death penalty, as have recently such people as George Will and Pat Robertson, for example. I believe the U.S. Supreme Court will eventually call a halt to executions but I don't pretend to claim that it will likely be for "moral" reasons. More likely, they will simply decide again -- as they did nearly 30 years ago -- that it is administered unfairly or arbitrarily, or puts too many innocent people at risk, or is simply out of whack. But I'd take abolition any way I could get it.

Essler: In Who Owns Death?, you write at length about the media's role in executions. The stance of many in the abolitionist movement is that public or televised executions would bring home the barbarism. Do you agree and does this theory have any precedence in other societies?

Mitchell: Actually, only a small part of the movement favors that position. Very few places around the world have public executions. I fear that televised executions would become a spectator sport or numb people to the process. You know, it should be the called the "killing penalty," not the "death penalty."

On the other hand, there's already so much numbing because of the lethal injection process and the medicalization of the executions. I suppose some people would watch an execution and be outraged by the banality of evil.

Essler: Have you ever witnessed an execution?

Mitchell: No, but we have a lot about witnessing in our book. My musical and political hero Steve Earle has, and I'd recommend that anyone search out an article he wrote about it in Tikkun last year -- just reprinted in the Utne Reader -- as well as listen to the song he wrote about it, "Jonathan's Song," on his latest album, Transcendental Blues.

Essler: Do popular entertainment portrayals -- movies like The Green Mile and Dead Man Walking -- have any effect on popular opinion, or are people who view this material predisposed to a certain moral view?

Mitchell: Oh, I think it has some effect. Electric chair scenes used to be fairly common in American movies last year but have fallen out of fashion, so seeing that barbarity in The Green Mile was probably useful, although the film was somewhat muddled. I thought Dead Man Walking was great because it did not take an obvious anti-death penalty stance but went straight down the middle, showing the horror of both the murder and the execution.

Essler: Many who oppose the death penalty do so on religious grounds. In your book, you contend that the sway toward a moratorium is heavily influence by clergy. However, the church has not made an impact in this area when compared to abortion. Why are "pro-life" activists not more vocal in this arena?

Mitchell: You'd have to ask them, honestly. But the Catholic Church, for one, is now having a major impact since the Pope, two years ago, really started taking an activist stance on this. Until then it had been pretty pro forma but now the Catholic bishops and hierarchy are taking a strong stand.

Essler: It has been suggested that sanctions by other countries -- especially in Europe -- may be more successful than domestic protest. Is there a movement amongst Americans to garner support from Europe?

Mitchell: I think American abolitionists mainly just publicize the censure from other countries. The United States is so apart from the rest of the developed, Western world on this. I'm sure Bush will be hearing this now, at high levels.

Essler: The abolitionist movement -- more and more, it seems -- is seeking its momentum from murder victims families. As you describe in the book, many want to stop the cycle of killing and violence. How deep is the support of this view amongst victims' families?

Mitchell: It's hard to say, but at the minimum, it is much stronger than reported in the media, which leaves the impression that all victim's families are for executions and want more of them. And certainly we understand and respect the reasons they often attend executions and then pronounce some satisfaction afterward. But many do not find "closure" and others stay away from the whole affair. And in any case, we have never had a system of law where victims of crime decide the punishment. If we did there'd be thousands executed every year for robbery, rape, or cheating on their spouses!

Essler: In the subtitle of your book you mention the "American Conscience." What is the state of the American Conscience today as opposed to, say, 30 years ago when there was a death penalty moratorium?

Mitchell: I think the public is much better informed about the failures and unfairness in the capital punishment system today, the innocent people released from death row, and as important as anything else, the existence of a plausible alternative, life without any chance of parole. Also, as more people come out publicly opposing executions it makes it easier for others to join them, as they no longer feel so alone with their fears. We hope our book, in coming out strongly for abolition, and arguing that it is quite feasible, even likely, will change the public opinion atmosphere a bit, and make a few more people feel comfortable about "coming over" to our side.


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