Blue Dog Press

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.

Art Imitating Activism

"So come back Woody Guthrie
Come back to us now
Tear your eyes from paradise
And rise again somehow"

-- Steve Earle, "Christmas in Washington"

Steve Earle, country-rock maverick and death penalty abolitionist, bemoaned the lack of political activism in popular music in Christmas in Washington, a 1997 recording. But Earle doesn't just sing about the issues close to his heart. He lends his time, money, and creative energy to a number of causes, most notably stopping capital punishment. While many rock stars sing from a soapbox, very few have the goods to back it up. Earle's commitment to his convictions has exposed the complicated and emotional death penalty debate to an audience that may not otherwise take a position. By infusing his art and public statements with activism, Earle may have single-handedly brought the "protest singer-as-instrument-of-social-change" back from the dead. Woody Guthrie may finally get to smile from his grave.

"Welfare rights, opposing the death penalty -- Earle doesn't fit the Nashville stereotype," wrote David Corn, Washington editor of The Nation. "Hell, he's done more on-the-ground activism than most legislators. Not bad for a guy who five years ago was imbibing $800 worth of coke and heroin a day. (He's been clean for four years.) [Six years now --Ed] Earle deserves as much notice, if not more, as your average congressman."

Though Earle may deserve the notice, he doesn't necessarily want it. The singer-songwriter -- who has half-jokingly described himself as "to the left of Mao Zedong" -- uses his audience, his bully pulpit, to express his views on capital punishment and raise awareness. After piquing their interest, it is incumbent upon the listener to take a side, and hopefully, pick up a placard. Earle thinks that his anti-death penalty concerts -- in cooperation with Journey of Hope, Tennessee Coalition to Abolish State Killing (TCASK), and other anti-capital punishment organizations -- will connect with his audience.

"The whole thing with these shows is to stop it before it starts," Earle told The Commercial Appeal last year. "I know from personal experience -- from seeing it -- that once this gets started, once the first killing happens, there develops this really dark, hard-to-overcome momentum. It's much easier to stop this now, before the first killing. Once it gets going, the state has blood on its hands, which means we have blood on our hands -- there is no 'they.' Once that happens, we have to start rationalizing it. And it'll be much harder to put an end to it."

The "personal experience" of which Earle speaks is the execution (by lethal injection) of Jonathan Nobles, which the singer witnessed in 1998. Nobles was convicted of brutally killing two Texas women. The experience obviously changed Earle and increased his already strong commitment to the abolition of capital punishment.

"Jon was guilty of an incredibly heinous crime," Earle told The Toronto Sun recently. "He spent the last 11 years of his life trying to understand why he did what he did. He changed. It was a huge waste, 'cause when the system manages to foster in any way, even by accident, a change like that, we need to keep those people around to find out what the fuck we did right.

"I can name you a hundred intellectual reasons why I oppose the death penalty. But really I object to the damage it does to my spirit, because if my government takes a life in what's ostensibly a democracy, then I'm taking a life. I'm not okay with that."

The most tangible evidence of Earle's friendship with Nobles is Over Yonder (Jonathan's Song), from his latest CD, Transcendental Blues. The song takes no side on the death penalty, but instead tries to humanize Nobles. Earle, whose narrative lyric writing gets stronger with each new album, places himself in Nobles' shoes. It joins a strong canon of Earle songs that are political in nature, but Over Yonder represents a personal, rather than intellectual or political, perspective on capital punishment.

"The thing about Jon is, he changed so much while he was in jail. They killed a different person than they convicted," Earle told Jam Showbiz. "It was a hard thing. Jon had this prankster thing going on. Two months after he died, I suddenly got this letter from John. He gave it to his sister and I got this letter literally after he died. He wrote it knowing he would be dead when I received it. It was pretty spooky."

"We got to know each other pretty good before it was all over with. We corresponded for years, and then we had to get to know each other real well in the six days before he was executed. I am writing an article for this magazine, Cocoon, which is about that. It is the first time I have set an eyewitness account down. I am in the middle of that right now. I am having to re-live it."

"He wasn't cocky," Earle told The Associated Press of Nobles' last minutes. "He cried, but he wasn't whining. It wasn't about him. He apologized to one survivor of the attack, and he apologized to the mother of one of his victims. It was a heartfelt apology, and then he read a Bible verse."

"He said he wanted one person who didn't hate him who could tell the world how he died," Earle said to Men's Journal's Mark Jacobson, shortly after journeying to Huntsville, Texas. "Lethal injection is what made the death penalty all right again in this country... it's supposed to be painless. They had me in a little Plexiglas booth. In another booth were members of the victims' families. Jonathan sat out there in a little rotunda. The booths have microphones in them so you can hear what goes on, if you can believe that. Jonathan asked his family what his final words should be. They told him not to say anything, that he should sing, because he always had a nice singing voice. So he sat there singing Silent Night, when suddenly, in the middle of the line 'mother and child', the air exploded out of his lungs as if an invisible anvil had been dropped on his chest. I'll never forget how loud that sound was. It wasn't merely air being forced out of a man's lungs as his diaphragm collapsed in a drug-induced spasm. It was like the sound of a life -- a soul, if you will -- being ripped violently from the body of a living human being.

"It was murder. Afterward, when I left the prison, I could barely walk... The idea of life and death being that close... it overtook me."

Rather than drown himself in anger, though, Earle has turned the horror he witnessed into a vehicle for social change.

"I am one of a really small number of people who has actually seen the state kill somebody so I'm coming at this from a little different place," Earle told The Chicago Sun-Times late last year. "Sister Helen [Prejean, author of Dead Man Walking], who has seen it a lot more than I have, says that it will either paralyze you or it'll galvanize you. Well, I'm galvanized."

Though Earle is galvanized now, his commitment to stopping the death penalty dates back to Billy Austin, a track from the 1990 album The Hard Way that pre-dates Earle's fall from grace and subsequent rebirth. Starting in 1991, Earle practically ditched music to hang out on Nashville's south side, smoking crack and shooting speedballs. After an arrest, and a three-month stay in the pokey, for misdemeanor possession in 1994, Earle cleaned up and began recording a series of albums that melded his personal heartbreak (six marriages, two to the same person) and political activism.

In 1995, director Tim Robbins asked the reformed Earle to write a song for the soundtrack of Dead Man Walking, Robbins' adaptation of the book. Earle contributed Ellis Unit One, one of the most powerful songs of his illustrious career. A far cry from Guitar Town, the hillbilly-rock hit that signaled Earle's Nashville arrival in 1986, Ellis Unit One was sung from the perspective of a death row guard. Sung in a hushed, raspy whisper, accompanied only by acoustic guitar and harmonium, Ellis Unit One officially marked Earle's reemergence as a songwriting force to be reckoned with. Evoking the populist narrative of Bruce Springsteen's Nebraska, the song is a crucial road marker in Earle's long career.

...Well, I've seen 'em fight like lions, boys I've seen 'em go like lambs And I've helped to drag 'em when they could not stand And I've heard their mamas cryin' when they heard that big door slam And I've seen the victims families holding hands...

"What happened was I grew up in a home that was opposed to the death penalty, and I've always been fundamentally opposed to the death penalty. And I wrote Billy Austin in 1990 and the movement, people from the movement, started calling me," Earle told Buffalo Beat contributor Alan Sculley. "For a long time, I just sort of showed up at rallies and sang. Then I got out of jail and a lot of things in my life had changed. I started doing things differently and one of the first things I did was Dead Man Walking... At that point it went into another level. I felt like I had to do more than I was doing."

One activist who has witnessed Earle's dedication to the movement is Susan McBride of the Nashville-based Restorative Justice Ministries.

"One thing I really appreciate about Steve is that he just knows that the death penalty is bad because it doesn't allow for healing," McBride said. "Seeing him with the inmate's family brought home the part of the pain few people see. The family of the person being put to death is often treated as bad or worse than the inmate accused of the crime. Steve was sensitive to their hurt and sat in the living room of the house where they stayed during one of the stays of execution.

"An occasion occurred after a vigil held at a local church. It ended up being a time of celebration which we took on over to the place the family of Robert Glen Coe [who was executed earlier this year in Tennessee] was staying. Steve played for them and it warmed these folks."

While Earle's opposition to the death penalty is a moral one, he does offer political, spiritual and economic solutions.

"It's hard to be opposed to the death penalty without getting involved in poor people's issues, because the death penalty preys on poor people," he told The Commercial Appeal. "And there's a reason for that. We don't want to think about them; we don't want to deal with them. We're at a weird place in this country. Yesterday I picked up the Atlanta Sunday paper and it said 'Jimmy Carter at 75 on the Stingiest Nation in the World.' It's not just us. It's worldwide. We're not the only country that doesn't take care of our poor and less fortunate. But we definitely do a worse job than most places."

Americans, Earle continued, are a selfish lot "because we've convinced an entire generation of kids they're destitute if they make less than $80,000 a year. And we constantly advocate that people who are not entrepreneurial deserve to starve to death. We're throwing people off the welfare rolls and then wondering why things are getting desperate and mean out on the street."

"Look," he continued, "I'm a recovering heroin addict. When I was on the road and I needed to find heroin, I knew where to go. Find the projects, find the poorest, most desperate people I could find. It's not because those people were born bad. It's because they haven't got shit. From the beginning of time, the most desperate people in a society have turned to drugs."

Earle is also not immune to the voices of victims' families, who are often ignored by death penalty abolitionists.

"People who have had a loved one taken away from them are supposed to be angry," he explained in a recent Nashville Scene article. "They're supposed to want the [perpetrator] dead, but they're not allowed to kill them. That's the way the death penalty is being sold to the American people. It's being sold to people as justice. But it's a lie. The death penalty is about vengeance."

"I was at a lot of vigils before I witnessed an execution," Earle said. "I've seen murder victims' families go into the prison. I've seen them come out. And they always look the way I did when I came out. They look damaged."

"I have long appreciated that he does not deny the victim's family the right to their pain," said McBride. "Some people in the anti-dp movement make them 'the other side'. There is a heightened sense of concern for all people involved in violent crimes here and Steve is partly responsible as he keeps on giving us reminders."

Earle fan Thomas McLaughlin described how Earle's passion for the abolitionist movement sometimes clashes with his fan's views. McLaughlin witnessed an incident at a recent Philadelphia concert.

"Towards the end the set Steve started to talk about a few of the songs he wrote about capital punishment. He mentioned that he is a citizen of the U.S. and a government that murders its own people is not representative of his views. Then a guy in front of me shouted out, 'WHAT ABOUT THE VICTIMS!!?' Steve rebutted this by calling him a 'fucking redneck' and also that for the last two years he spent with victim's families who choose not to support the death penalty as means of revenge. It got a little tense. The guy kept interrupting Steve. Shouting about the victims. I felt like Steve was going to come down in the crowd and punch this guy out. He did say 'I'll refund your money if you'll just leave.'"

Earle is also hopeful that public opinion is turning on the death penalty.

"I think [George W. Bush] has had a lot to do with it," Earle recently told Pop Culture Press. "I think running for president, he's scared the living fuck out everybody in the country. I think you're a little concerned about somebody who's pushed the button so many times, and is so proud of it. The image of him mocking Karla Faye Tucker in that interview, have you ever seen that? I don't think anyone in this country, no matter... I mean the death penalty is something they've been fed. Sister Helen Prejean says 'the support for the death penalty in this country is a mile wide, but it's only an inch deep.' And what she means by that is most people support the death penalty, but they support it without knowing very much about what it is."

Whether or not Earle's journey of hope -- the transcendence he describes on his new album -- will mark a return to the days of musical activism is still unclear. For Earle, though, change is earned one person at a time.

"When you bought your ticket tonight," Earle told the audience at a recent Journey of Hope concert. "You became activists against the death penalty in Tennessee."

"The warden said he'd mail my letter
The chaplain's waitin' by the door
Tonight we'll cross the yard together
Then they can't hurt me anymore
I am going over yonder
Where no ghost can follow me
There's another place beyond here
Where I'll be free I believe
Give my radio to Johnson
Thibodeaux can have my fan
Send my Bible home to Mama
Call her every now and then
I suppose I got it comin'
I can't ever pay enough
All my rippin' and a runnin'
I hurt everyone I loved
The world'll turn around without me
The sun'll come up in the east
Shinin' down on all of them that hate me
I hope my goin' brings 'em peace"

-- Steve Earle, "Over Yonder (Jonathan's Song)"