In Tennessee, not just any cold-blooded murderer is supposed to face the death penalty -- only "the worst of the worst." Like Brett Patterson, who raped and choked a woman to death with a silk scarf, then strangled her husband with a cord during a home invasion. Or Courtney Matthews, who shot four Taco Bell employees execution-style during a robbery, even though they cooperated with his demands. Then there's David Scarbrough and Thomas Gagne, who broke into an elderly couple's home, shooting them both several times before robbing them. And William Bogus, who strangled his estranged wife, then stole the tips she had earned as a waitress at Shoney's so he could fund a crack cocaine binge.
All ruthless killers -- arguably among the very worst -- yet none of them face execution.
The death penalty is supposed to be reserved for the state's most unconscionable murderers, but such deplorable offenders often are spared, while perpetrators of far less cruel and callous crimes await the ultimate punishment on death row. Like Abu-Ali Abdur'Rahman, who faces death for murdering a local drug dealer, despite virtually no hard evidence proving he was the actual killer. Or Olen Hutchison, sentenced to die for a murder that was committed while he was in another county.
In Tennessee, capital justice is a grim game of chance, where the outcome often hinges on the whims of a particular prosecutor and where judges rarely find a death sentence excessive. While it's easy to make moral arguments against the death penalty -- if not practical ones, since innocent people occasionally find their way to death row -- perhaps the worst criticism about capital punishment in Tennessee is that it's arbitrary and irrational. In fact, one of the state's highest prosecutors cavalierly admits that the decision to pursue the death penalty is based on a "gut feeling."
The blatant, unexplainable disparities in sentencing are exactly why the U.S. Supreme Court temporarily suspended capital punishment during the 1970s. But today the death penalty is just as randomly applied in Tennessee as ever before, despite statutory changes intended to make the system fair.
Judge Gilbert Merritt of the 6th U.S. Circuit Court of Appeals once noted that prosecution policies vary radically in each jurisdiction, adding that a murderer who receives a death sentence in Shelby County likely would not even be subject to a capital trial in Davidson County or most places in East Tennessee.
"The administration of the death penalty nationwide remains broken and arbitrary, and that seems particularly true in Tennessee," Merritt said in 2005. "We must stop the randomized selection of defendants by the state for execution."
Meanwhile, Tennessee's district attorneys overwhelmingly object to limiting their discretion in the capital justice arena, but even they admit that doling out death sentences is a crapshoot, not a science. They just don't seem to think that's a problem.
"If you put 20 DA's in a room and give them a set of facts, you might have [those] that say, 'This is a death penalty case and we ought to ask for it,' and you might have then others that say, 'No, I don't think we ought to ask for the death penalty,' " Wally Kirby, executive director of the Tennessee District Attorneys General Conference, nonchalantly told a legislative committee studying the state's death penalty in October 2007. "They're all different, and they all for the most part have to express the sentiment of the community that they're elected to represent, and that's different all across the state."
It was supposed to be a simple burglary: easy in, easy out, no need for a weapon. And at least at first, everything went according to plan.
The house was empty when Edward Jerome Harbison and his partner in crime used a screwdriver to break inside on the afternoon of Jan. 15, 1983. The duo hastily rounded up valuables -- an RCA television, antique jewelry, a silver-plated pen set, a Polaroid camera -- and brazenly walked back and forth to their getaway car hauling the loot in broad daylight. Hardly a criminal mastermind, Harbison was not prepared for what happened next, nor was his accomplice, David Schreane, despite a wealth of criminal experience.
Returning from the supermarket, Edith Russell surprised the two intruders as they were ransacking her Chattanooga home. Later that night, Frank Russell returned to find his wife's car in the driveway with the keys still in the ignition and bags of groceries in the backseat. Frantic, he ran inside, where he found his home in disarray and his 62-year-old wife dead in a pool of blood on the floor.
A month later, police finally nabbed a suspect in connection with the murder. The investigation led detectives to Schreane, and not surprisingly, the savvy criminal was well-versed in the ways of shifting blame, having previously snitched on a co-defendant in a burglary case to get a lighter sentence. It didn't take long for Schreane to rat out his novice accomplice, blaming him for the fatal turn of events inside the Russell house. During his interrogation, Schreane claimed that when the victim unexpectedly returned home, Harbison grabbed a marble vase and swung, bashing her in the skull.
Police arrested Harbison that day and charged him with murder.
Although Harbison had no prior criminal record, and even though he entered the Russells' empty house without a weapon, it didn't take long for prosecutors to announce plans to seek the death penalty. In pursuing a death sentence, the prosecution claimed the murder was premeditated, resolving the fact that he was unarmed by arguing premeditation could be "formed in an instant." The paradoxical argument prevailed with the all-white jury, which convicted the 23-year-old black man and sentenced him to die. (Seven years later, the Tennessee Supreme Court prohibited prosecutors from using the "in an instant" argument to prove premeditation, but the decision was not retroactive and therefore not grounds for appeal.)
Due to an unqualified defense lawyer at trial, it would be several years before details emerged about Harbison's horrific childhood, during which his mother beat him with belts and extension cords, his sister shot at him, his father attacked him with a power drill and his older brother set him on fire. Also unknown to the jury was the fact that an expert had previously determined Harbison was borderline mentally retarded and psychologically impaired as a result of a lifetime of abuse, making him an easy target for a streetwise criminal like David Schreane to manipulate. But perhaps the most shocking post-trial revelation was that police failed to turn over crucial documents naming a third suspect who never was charged in connection with the murder and instead was extradited to Florida on unrelated charges. Despite repeated requests for all files related to the investigation, this key evidence was withheld from Harbison's defense until 14 years after he was sentenced to die.
All of this evidence might very well have dissuaded the jury from imposing a death sentence, but in a criminal justice system reluctant to correct past mistakes, it's proven to be of no use in his appeals. In fact, on two occasions Harbison has been within weeks of execution, managing to cheat death both times due to controversy not about the facts of his case but surrounding the constitutionality of lethal injection, a question currently being weighed by the U.S. Supreme Court.
Meanwhile, Schreane -- whose rap sheet included armed robbery and multiple burglaries -- accepted a sweetheart deal from prosecutors, pleaded guilty to second-degree murder and served only six years behind bars. Not long after his release, the career criminal picked up where he'd left off, landing back in prison for an array of violent felonies.
"While the crime in this case is tragic, it's not the type of case people think of when a person has been sentenced to death," says Dana Hansen Chavis, a federal public defender representing Harbison in his 11th-hour appeals. "There was no premeditation. No one took a weapon there to kill her. It's a far cry from being one of the worst of the worst crimes."
In 1972, the U.S. Supreme Court struck down the death penalty, declaring the punishment "cruel and unusual in the same way that being struck by lightning is cruel and unusual."
The landmark decision stemmed from a Georgia case in which the defendant, Henry Furman, was sentenced to death for fatally shooting a woman during a botched burglary. The majority determined Furman was among a capriciously selected handful sentenced to death while more reprehensible defendants were spared. Sound familiar?
After the Supreme Court declared the death penalty unconstitutional because it was "wantonly and freakishly imposed," states scrambled to rewrite their capital punishment laws.
In 1977, Tennessee unveiled its updated statute, once again making execution a viable punishment for murder. The new law included checks and balances to ensure death sentences are meted out fairly, with one major change requiring prosecutors to prove a murder was committed in conjunction with at least one "aggravating factor." The new clause limited a prosecutor's discretion, reserving the ultimate sanction of execution for the most abhorrent murderers.
Over the years, that list of aggravating factors has broadened, however, giving prosecutors more and more latitude in deciding whether to seek death.
"To me, the prosecutor is the most powerful person in the state in the sense that there's no review of his decision to seek the death penalty," says Bill Reddick, director of the Tennessee Justice Project. For the past two decades, the longtime criminal defense lawyer has handled death penalty cases almost exclusively . And from his experience, Reddick says it's clear that although the law requires capital punishment to be reserved for the worst offenders, instead it's often handed out randomly in Tennessee. "There's a big difference in the way prosecutors exercise discretion in the decision to seek death Ã¢â‚¬Â¦ The type of justice being applied varies in different parts of the state."
For example, since Tennessee resuscitated the death penalty, Shelby County prosecutors have consistently and overwhelmingly led the state in capital cases. They've handed out 64 death sentences while prosecutors in Davidson County have sentenced only 13 defendants to death, a vast disparity that can't be explained by Nashville's lower murder rate. In recent history, 47 of the state's 95 counties have not even sentenced a murderer to death. Of course, there are myriad reasons for such disparities, particularly depending on who is talking. And while varying crime rates is an obvious and reasonable explanation, the fact that some prosecutors point to different cultures and standards as an excuse suggests the system is hopelessly arbitrary.
Reddick adds that death sentences are not adequately reviewed to ensure fairness, even though that's required by state law. "If you don't have a reliable way to compare cases," he says, "then you'll never know whether a death sentence is a fair and reliable result."
Following the Furman decision, creators of Tennessee's new death penalty statute charged the Tennessee Supreme Court with reviewing all death sentences to make sure they are proportionate to punishments imposed in similar murder cases.
But the review is simply not working, at least as it was intended.
"Even though a case might technically meet the test for the death penalty, it might not be appropriate. That's what proportionality review is all about," says David Raybin, a former prosecutor who in 1972 took on the task of rewriting the state's capital punishment laws. "It's an extra safeguard so you don't have an aberrant or freakish imposition of the death penalty. That's what it's designed to do. How it's being applied in practice is a different story."
Although Raybin supports the death penalty for the worst offenders, he's critical of how the ultimate punishment is being applied in Tennessee.
Under the new law, the intention was for the state Supreme Court to compare all murder cases eligible for the death penalty, including those in which the state opted instead for a prison term. But over the years the court has narrowed the pool of cases it considers only to those in which execution was sought.
"How could you ever make a true proportionality review if you don't have the whole spectrum of cases before you?" asks Raybin, suggesting it's necessary to consider all murder cases in which execution is a potential punishment to detect an anomaly.
If Tennessee is going to have capital punishment, Raybin says it needs to be fair, which is why this review is imperative. "When it comes to proportionality review, the question is not whether the defendant is guilty. In most cases the defendant probably is," he explains. "The real question is whether a defendant deserves the death penalty and whether it's imposed in a fair manner."
On the same day he was arrested in connection with Edith Russell's murder, Edward Harbison confessed to the crime. When Russell returned home and caught them in the midst of their heist, Harbison said he believed she was reaching for a gun in her purse, and without thinking, he snapped, smashing the vase over her head.
Eventually Harbison recanted, claiming officers coerced his confession by threatening to take away his girlfriend's children if he didn't say exactly what they wanted. It's an unlikely claim, perhaps, but his lawyer says whether he's guilty or not, a sentence of death does not fit the crime, particularly given her client's dreadful background.
Before his arrest in the Russell murder, the only legal trouble Harbison ever faced was for petty theft as a child. One of eight siblings, Harbison was taught by his parents to steal, shoplifting necessities like socks or lifting scrap metal from warehouses and selling it for much-needed cash. School records from when Harbison was 14 describe him as "borderline mentally retarded" and classify his home life as "horrible in all areas imaginable."
Living in a shack without running water or electricity, Harbison and his siblings frequently went without meals while their parents drank away any income they earned. The children picked weeds to make salad, and mixed water and flour to concoct a sorry substitute for milk. Not surprisingly, each of the Harbison children began drinking at an early age, in part to numb the pain of the abuse they suffered. Mental illness and abuse plagued the children, and while the boys in the family bore the brunt of the physical abuse, court documents say Harbison's sisters were the victims of years of incest at their father's hands. After twice giving birth by the age of 14, one of the girls murdered her month-old son and 16-month-old daughter while her brother Edward was in the next room. In an affidavit, Harbison's mother admits, "It never was ruled out that my husband may have been the father." Following the double homicide, the young girl was declared legally insane and placed in a mental institution, where she eventually hung herself. Harbison's other sister also was committed and has spent her life in and out of psychiatric hospitals, according to court documents. And while an anguished, ruinous childhood certainly does not excuse murder, this information might very well have convinced a jury to spare Harbison's life.
In addition, police files on the Russell murder that tilt the blame to the defendant's accomplice were not turned over to Harbison's defense until 1997. They should have been provided well in advance of his trial 14 years earlier. The police notes contained witness statements claiming they saw Harbison's co-defendant, David Schreane, across the street from the victim's home on the afternoon of the murder and that he wasn't with Harbison but another man. The documents also take a shot at Schreane's credibility. They note that he initially told police that he was with someone else that day, but he later changed his story and identified Harbison as his accomplice. A witness also had revealed that Schreane was angry with Harbison for "talking to his lady," suggesting he might have had a motive to frame Harbison.
Finally, the files contained crucial details about a potential third suspect who had a disagreement with the victim a week before the murder. Apparently, the mystery suspect's own wife told detectives that her husband "didn't kill her," but she admitted he was in the house at the time of the murder.
Those police files would have been gold to a defense attorney, but they didn't surface until it was too late. And so a jury sentenced Harbison to death while his accomplice served a short stint in prison. Meanwhile, the potential third culprit was never charged.
Even without taking any of this highly exculpatory evidence into account, however, several judges have determined Harbison never should have faced the death penalty in the first place.
In reviewing the case in 1986, Tennessee Supreme Court Justice Ray Brock concluded the death penalty was inappropriate because it was arbitrarily imposed on Harbison, who clearly was not one of the worst offenders. Since then, two other justices have found the death sentence inappropriate in Harbison's case, while two additional appellate judges have had enough doubt to abstain from opinions upholding the sentence.
"The sentencing disparity in this case, ranging from death to six years to not even being charged with the crime, is inexplicable," say Chavis, who has represented Harbison now for nearly a decade. "This is a case of unequal justice. It is a case where the punishment does not fit."
Since the death penalty was reinstated three decades ago, the Tennessee Supreme Court has reversed the death sentence of only one of 209 capital defendants because the punishment was disproportionate. In that case, 22-year-old Bobby Godsey, of Sullivan County, was sentenced to die in 1997 for the death of his girlfriend's 7-month-old son. The defendant admitted he threw the child toward the bed because he would not stop crying and that the victim instead landed on the tile floor. The infant stopped breathing and died at the hospital hours later. Medical experts determined there was no evidence of prior abuse, and other witnesses testified that Godsey was extremely remorseful, yet a jury imposed death.
Upon reviewing the sentence in 2001, the state Supreme Court unanimously agreed to reduce Godsey's sentence to life without parole.
But while most of the justices viewed this as proof that the system works, then-Tennessee Supreme Court Justice Adolpho Birch penned a separate opinion in which he lambasted the court's review process, as he had many times before: "The majority has today, for the first time, found the sentence of death to be disproportionate to the penalty imposed in similar cases Ã¢â‚¬Â¦ I concur in this result. If, however, there are those who would trumpet the majority opinion as proof positive that the proportionality protocol works as it should, I move quickly to temper their voices."
Before stepping down from the Supreme Court in 2006, Birch vehemently argued that the justices should compare all similar cases, not just those defendants whose prosecution is "more vigorously pursued" by the state. Because prosecutors are inconsistent in their pursuit of the death penalty, Birch argued arbitrariness was inevitable.
"My view of proportionality review was that it was flawed from the beginning," Birch tells the Nashville Scene, pointing to his past opinions for a more in-depth explanation of his position. Although no longer privy to exactly how proportionality reviews are conducted, the longtime judge adds with certainty, "Just because there is one case kicked out because of it, doesn't mean the system is fixed."
The court's majority disagreed, though, and dismisses the notion that it should consider cases in which the state, for whatever reason, does not seek execution. Doing so would require it to scrutinize a prosecutor's decision. "Such a course could potentially discourage the state from exercising its discretion to not seek the death penalty and from engaging in plea bargaining," the justices argue in their 2001 ruling in the Godsey case. "Indeed, such a course could result in the state seeking the ultimate penalty in every first-degree murder case. Proportionality review is not Ã¢â‚¬Â¦ a vehicle for reviewing the exercise of prosecutorial discretion."
But according to former Tennessee Supreme Court Justice Penny White, unless all first-degree murder cases are considered in the review, it's impossible to determine whether a particular death sentence is an aberration. Basically, you need as large a sample size as possible for something this significant. The fact that some district attorneys might choose to seek death in a case where another may not needs to be taken into account.
Now a professor at the University of Tennessee College of Law, White was ousted from the state Supreme Court after concurring with an opinion that a death row inmate should be resentenced due to a technical error in the case. It was the only death penalty case White had the chance to consider during her two-year stint on the court, and although she was not alone in her opinion, pro-death penalty conservatives targeted her, launching a nasty publicity campaign that resulted in her losing a retention election in 1996.
"I think it's pretty obvious if you look across Tennessee that there are some prosecutors who have this idea that they were elected to ask for a death sentence every single time there's a murder, and there are others that think they are supposed to utilize their discretion in determining whether to go for a death sentence," White says. "That alone skews the pool of cases."
Sometimes prosecutors seek death for an accused killer, yet the jury is persuaded to show mercy. In other cases where capital punishment is an option, district attorneys opt to spare a murderer from the beginning, and the reason is anyone's guess.
Just last spring, a Sevier County jury sentenced John Wayne Blair to life without parole for the 2005 murder of his 22-year-old neighbor, Kelly Sellers. Evidence presented at trial revealed the victim likely was conscious as she was sexually tortured for hours until she finally bled to death as a result of multiple lacerations. Her bloodied and battered corpse was found -- hands still bound with duct tape -- wrapped in a plastic tarp and buried under debris. Photos of the victim's remains were so gruesome that one of the jurors reportedly vomited and then fainted upon reviewing them at trial.
Although the jurors acknowledged that the state proved beyond a reasonable doubt that Blair was to blame for the murder, they said mitigating evidence regarding the defendant's low intelligence and horrific childhood outweighed the aggravating factors and therefore sentenced him to life without parole.
A Nashville couple recently was sentenced to life in prison after pleading guilty to the brutal murders of a young mother and her 3-year-old daughter in 2005. Danny Anderson and Christina Sanchez entered the home of Hilda Guitierrez, 21, on the false pretense of being able to help her obtain travel documentation. The pair's real plan was to kidnap the woman's newborn baby, which Sanchez intended to pass off as her own.
Once inside the apartment, the suspects repeatedly stabbed the mother, leaving her to bleed to death and then stabbed the woman's 3-year-old daughter, smothering her with a pillow to make sure she didn't survive the brutal attack. Given the improbability of a toddler identifying the suspects, the murder was especially cruel. When the dreadful act was finished, the killers fled with the infant. In exchange for their guilty pleas, Davidson County prosecutors did not seek the death penalty.
Repeated studies of Tennessee's capital punishment system have uncovered flaws ranging from overzealous prosecutions to an unreliable system for spotting erratic death sentences. But despite ample recommendations from these nonpartisan studies, the state has failed to make any meaningful improvements, choosing instead to leave a blatantly deficient system untouched.
In 2004, a committee of the state legislature asked the Office of Research -- a government office that objectively analyzes policy issues -- to study the state's administration of the death penalty. The study revealed that district attorneys have "considerable discretion" and that as a result: "Prosecutors are not consistent in their pursuit of the death penalty. Some prosecutors interviewed in this study indicated that they seek the death penalty only in extreme cases, or the 'worst of the worst.' Prosecutors in other jurisdictions, however, seek the death penalty as a standard practice on every first-degree murder case that meets at least one aggravating factor. Still, surveys and interviews indicate that others use the death penalty as a 'bargaining chip' to secure plea bargains for lesser sentences," a familiar tactic to anyone who has ever watched an episode of Law & Order.
The study concluded state lawmakers should consider establishing criteria for district attorneys in pursuing a death sentence. Such guidelines would "remove some of the arbitrariness of prosecutorial discretion," the report suggests, and might also strengthen capital cases, ensuring prosecutors review all the facts in a stringent and consistent manner, resulting in fewer appeals and overturned sentences.
For the first time since the death penalty was reinstated in Tennessee, it seemed improvements might be on the horizon. But lawmakers failed to act, interest in the issue fizzled out, and the study soon was forgotten.
As the legislature was analyzing how it metes out the ultimate penalty, the American Bar Association (which is neither for nor against capital punishment) was in the midst of its own three-year review of Tennessee's death penalty. In March 2007, a final report stated Tennessee meets only seven of 93 standards intended to ensure that the death penalty is fair. As a result, it recommended a host of improvements were recommended, including a more "meaningful" proportionality review by the state Supreme Court to guarantee capital punishment is "administered in a rational, nonarbitrary manner" and to "provide a check on prosecutorial discretion."
But again the state took no action, instead launching yet another review of capital punishment at the direction of the state legislature.
Tennessee's death penalty study committee convened last fall on Capitol Hill with a goal of making capital punishment in Tennessee uniform in its application and free from bias. Given the committee's mission, the topics of prosecutorial discretion and the judiciary's duty to review capital cases were at the top of the agenda.
At one of the very first committee meetings, some legislators were shocked by recurring remarks from prosecutors who cavalierly acknowledged that district attorneys have different standards when deciding whether to seek a death sentence. They even added that it's not only acceptable but common practice to assess the reactions of constituents when deciding what murders should be tried as capital cases.
When questioned about prosecutorial discretion during an Oct. 15 meeting, Jennifer Smith, associate deputy attorney general, said district attorneys decide whether to seek the death penalty not only based on their knowledge of the law but also on a "gut feeling." That isn't exactly reassuring. "What the DAs often do is sort of gauge a sense of the community outrage," she explained, adding that such discretion is acceptable and, in her opinion, does not lead to the arbitrary imposition of death sentences.
A few legislators voiced their concern that politics might play into a decision to seek the death penalty, given that district attorneys are elected officials. But Smith attempted to assuage any fears that prosecutors might be more inclined to seek executions for the sake of re-election, although her reasoning wasn't exactly a slam-dunk: "I guess anything involving human behavior involves politics," she admitted upon persistent questioning.
Such statements baffled Sen. Doug Jackson, who co-sponsored legislation launching the latest death penalty study. The Dickson Democrat supports capital punishment, but said he's troubled by the fact that district attorneys across the state do not follow consistent guidelines -- or in most cases, any guidelines at all -- when deciding to seek a death sentence. It's an approach he likened to "licking your finger and sticking it up in the air."
In all of Tennessee, it seems the only prosecutor's office that follows strict guidelines in pursuing capital cases is in Nashville. In 2001, Davidson County District Attorney General Torry Johnson issued written guidelines to ensure the decision to seek the death penalty is made properly and impartially, and that the prosecution is conducted fairly. The move prompted praise from defense attorneys and other legal experts who believe other district attorneys should follow the lead.
"This was sort of the procedure we had used informally for as long as I could remember. I just felt we ought to put it down in black and white," Johnson says. "It was just to make sure we were consistent within our own office when reviewing cases that had the potential for the death penalty."
Once an assistant district attorney in Nashville determines a case is eligible for the death penalty, the guidelines call for the prosecutor to consult with the victim's family and then discuss the matter in detail with the district attorney general. The prosecutor then notifies the defendant's lawyer, giving the defense an opportunity to provide any evidence that might dissuade the prosecution from seeking execution. The final decision is up to Johnson, who makes it clear in the guidelines that his office will only seek death in cases where the evidence of guilt is substantial. That means there will be no capital cases that rely on uncorroborated evidence from a single witness or from a cooperating co-defendant or accomplice.
There's no indication (at least on paper) that other Tennessee district attorneys go through such a reasoned thought process, and it seems they'd prefer to maintain the status quo. When asked about the prospect of establishing statewide guidelines, prosecutors overwhelmingly disapprove.
"What works for General Johnson wouldn't work in my district. His is a large office. He has supervisors, he has people, he's insulated," Al Schmutzer, former district attorney in Sevier County, said in a briefing before the latest death penalty study committee. In small rural offices, it's up to the district attorney to decide not only whether to seek death, he said, but also whether to try the case. "I've gone through about 15 of these cases at the very least that I've tried and prosecuted, and I went through a lot of reflection, a lot of prayer, a lot of facts. I know my fellow DAs do the same thing. It's not something you do willy-nilly."
In Shelby County, District Attorney General William Gibbons says his office -- the largest and busiest in the state -- does not rely on written guidelines in deciding what murders should be tried as capital cases. State law dictates the process, he says, and he would oppose any attempt to supplement the law with some other checklist.
It's also important to remember that no two cases are alike, Gibbons says, adding: "What seems to be a confusing point for some when talking about death penalty cases is the failure to understand the importance of making a case-by-case decision based upon all legitimate factors, rather than simply using an arbitrary, cookie-cutter approach."
But unlike some district attorneys who flat-out admit to considering the public's view when weighing a potential capital case, Gibbons says his office never uses such a tactic. "This office never decides on the death penalty option based on what reaction the crime has generated in the press or the public."
As for the fact that one-third of all death sentences imposed in Tennessee in the past 30 years have been handed down in his jurisdiction, Gibbons says the explanation is quite simple: higher crime.
"The reason Shelby County has more defendants on death row is because Shelby County has had a tremendous number of murders," he says. "You cannot compare the number of persons on death row from Davidson County to Shelby County without putting it in the context of the historical homicide rate. Without looking at it in that context, the comparison is meaningless."
In 2007, there were 132 murders in Memphis, the most populated metropolitan area in Tennessee, compared to 73 murders in Nashville, the second-largest city in the state, during that same year.
But not all prosecutors feel compelled to rely on crime statistics in justifying the inconsistency of death sentences across the state.
In testifying before the death penalty study committee last fall, Wally Kirby, head of the district attorneys general conference, said he does not see a problem with the sentencing disparities between counties, and he has a difficult time understanding any angst over the topic.
Although Kirby acknowledges a higher crime rate in Shelby County likely contributes to such an exceedingly high number of death sentences, he says prosecutors are in fact all different and that each has a duty to express the sentiment of the community that he or she is elected to represent.
Finally, he warned the legislators that any attempt to rein in prosecutorial discretion could backfire, possibly resulting in prosecutors seeking a death sentence in every case where it's permitted under the law. "So my caution would be to be careful what you wish for," Kirby arrogantly warned. "You might not like what you get."
George McMahon knows he hasn't got much time to live. On this recent day, he sits in his car beside a crowded beach and opens a shiny metal canister filled with marijuana cigarettes. McMahon casually presses a large joint between his wrinkled lips, then lights it.
He's not in Amsterdam, or even Music City, but in rural Texas, home to Bible thumpers, Bush whackers, and a prison system renowned for zero-tolerance sentences and assembly-line executions. Even so, he's not concerned about legal repercussions. He can smoke pot in any state of the union without being arrested or prosecuted.
Afflicted with a rare neurological disease, George McMahon, 50, is the fifth U.S. citizen to receive legal medical marijuana from the federal government. He gets 300 joints a month, courtesy of the little-known Compassionate Investigational New Drug Program (IND), run since 1978 by the Food and Drug Administration.
The U.S. has a long history of allowing the use of experimental pharmaceuticals, but progress toward legitimizing the palliative power of pot stopped cold last month, when the Supreme Court ruled unanimously that "marijuana has no medical benefits worthy of an exception" from the Controlled Substances Act. In their ruling, the justices made no mention of Uncle Sam's own pot farm at the University of Mississippi, nor of the machine-rolled joints sent free of charge to sick people like George.
For now, the program continues because, officially at least, it's considered a research project. In theory, the feds are supposed to be collecting data on the therapeutic effectiveness of marijuana, but McMahon says the agencies supplying him have never sought much information on that. "I am just so pleased to be able to use what they send me legally," McMahon says. "To be relieved of some of the pain and still be within the law means so much."
The FDA's "compassionate" approach hasn't been available to many. The agency implemented the program under Jimmy Carter, following a lawsuit by Robert Randall, a glaucoma patient who demanded that the government acknowledge the medical necessity of his marijuana use. He was soon joined by cancer patients and people with multiple sclerosis or spinal cord injuries, who smoked federal pot for relief from nausea, pain, and muscle spasms.
But as the AIDS epidemic swelled, so did the number of applicants. Overwhelmed officials in the Bush administration stopped accepting applications in 1992, throwing hundreds of requests in the garbage and forcing the chronically or terminally ill to break the law by seeking their medicine on the black market.
The government agreed, however, to continue supplying the 34 patients, like McMahon, who already had been accepted. Today, only a half dozen remain.
His pain momentarily quieted, McMahon steps onto the green grass and limps toward the rickety wooden dock that reaches into glistening water. He suffers from an obscure disease known as Nail Patella Syndrome, a poorly understood genetic condition. NPS can attack major organs, including the kidneys and liver, disrupt the immune system in ways that are difficult to comprehend, and cause bones to be deformed, become brittle, and easily break. It affects the joints, limits mobility, and causes chronic pain, muscle cramps, and spasms. Some NPS patients also have serious immune system complications from the incurable disease.
George winces slightly as a cool breeze carries a cloud of marijuana smoke toward the lake. Although he's well acquainted with pain, he lived without a concrete diagnosis for many years. As a child, McMahon contracted colds and the flu frequently. Muscles in his arms didn't develop normally, and lifting weights did not help. He was constantly breaking bones, especially in his hands and wrists, and he lost all of his teeth by the time he was 21. He felt exhausted and could stand for only a few minutes without experiencing unbearable pain. Spells of nausea, fever, chills, and night sweats were common for him. He suffered from hepatitis A and B and tuberculosis, and there were times when his pain was just constant--whether he was walking, lying down, or sitting up.
The herb has brought McMahon the relief he couldn't find in traditional pills, and with fewer side effects. "Most people don't know that I'm sick unless I tell them," he says. "The marijuana has really been that effective in controlling my symptoms. I don't need statistics and research. I am living proof that marijuana works as medicine."
Efforts to get data gathered in the "investigational" pot project proved fruitless. Various FDA representatives have promised to answer questions and look up reports, but none did.
For people like McMahon, the true goal--to relieve suffering--seems obvious, as does the need to grant the relief to all who need it. His own medical history includes 19 major surgeries, seven of them performed in one week. Throughout his life, he has been prescribed morphine, Demerol, Codeine, Valium, and other sedating medications. He has been rushed to hospital emergency rooms on at least six occasions with severe drug-induced conditions, including respiratory and renal failure and hallucinations. The medications did little for his chronic pain and spasms, and he was both mentally and physically incapacitated.
Convinced that using small amounts of pot daily helped ease his discomfort better and without life-threatening side effects, McMahon smoked marijuana illegally for 20 years. Finally, he found a doctor in Iowa, where he lived at the time, who took a special interest in helping him get marijuana legally. He put McMahon through an investigation protocol and a spastic-pain evaluation. Then McMahon contacted Iowa Sen. Charles Grassley's office and was pleased to find a sincere willingness to help.
After yet more tests and stacks of legal paperwork, McMahon received his first shipment of marijuana from the National Institute on Drug Abuse in March 1990. These days, he goes to a designated pharmacy, where he picks up the medicine in the form of joints, stored in a silver tin with a prescription tag.
McMahon keeps his monthly supply with him at all times. As a general rule, he tries to be discreet, in hopes of not offending people or appearing to kids as a recreational pothead. "I cope with the pain," he says. "Some days are better than others, but if I go more than a few hours without my medicine, I can get myself in trouble."
Sometimes, though, he lands in a jam by taking it. McMahon says few cops seem to be aware of the program. On one occasion he and Margaret, his wife of 30 years, were attending a Virginia conference sponsored by the National Institute on Drug Abuse, where he intended to contradict the agency's specious claim that marijuana was addictive. George had meandered away from the main crowd to smoke his medicine, when he was approached by two police officers, one of whom began hitting his fingers, trying to knock the joint out of his hand, yelling at him to put it out.
"He called me a ïàmotherfucker,' called my wife a ïàfucking bitch,' and told me to ïàshut my fucking mouth,' " he says. "They tried to get us to leave by intimidating us. They treated me like a criminal. I am not a criminal. It was one of the worst feelings I've ever had."
Despite the intensity of his daily struggles, McMahon describes himself as a "regular family man who has had to make wide adjustments." His voice and appearance are rugged, the heavy toll of years spent at manual labor, for mining companies and large farming operations. Today, he lives quietly on disability insurance at his modest home in an East Texas gated community, and enjoys spending time with his three adult children and seven grandchildren.
He has a certificate of heroism for participating in the President's Drug Awareness Program in 1990, signed by former first lady and prohibition advocate Nancy Reagan.
McMahon is a reluctant hero. He expresses gratitude to his family, especially his mother and stepfather, June and Robert Baker, who have given a $500,000 annuity to the University of Tennessee at Knoxville to educate aspiring nurses. His wife has also been a tremendous support to McMahon, and she has seen the difference cannabis makes. "If he did not receive the marijuana," Margaret says, "George would probably be dead by now from all the other narcotics he would be taking for pain."
In addition to struggling for survival, McMahon is fighting for the decriminalization of medical marijuana. Since government weed contains only a moderate level of the intoxicant THC, McMahon remains lucid and eloquent. He has traveled the country, speaking with university students and faculty, legislators, physicians, and law enforcement officials--all while smoking 10 joints a day.
The recent Supreme Court decision to ban the Oakland, Calif., Cannabis Buyers' Cooperative from distributing medical pot set the campaign back, even as it exposed the government's hypocrisy. According to legal documents, the compassionate program that helps McMahon was a cornerstone of the cooperative's cause.
Few expect the federal government to start zealously enforcing the law. Consider the ramifications if officials began arresting and incarcerating tens of thousands of patients, breaking apart the families of sick and dying people, and using tax dollars to prosecute, imprison, and provide medical services to these patients. Politicians want to avoid front-page photos of MS patients with spasmodic arms handcuffed to wheelchairs while relatives sob in the background. "Federal agents generally aren't prosecuting marijuana possession crimes," says Knoxville criminal defense attorney James Bell, "unless someone has more than 100 plants."
This lack of emphasis on marijuana prosecution also holds true at the state level. Bell claims that "most police officers in Tennessee have better things to do than go after marijuana smokers, medical or otherwise."
H. Wallace Maroney, a Memphis attorney who believes that patients should be able to use marijuana if it helps them, concurs with Bell. "Tennessee law enforcement officials don't typically arrest those who are ill. They target kids and young adults, racial minorities, people who remind them of the 1960s, guys with long hair or an earring."
In 1999, Tennessee marijuana policy made national headlines when former Vice President Al Gore told reporters that his sister was supplied medical marijuana through a state program while she was undergoing chemotherapy in 1984. "It came in a prescription container with a label on it," he told reporters in 1999. "She was treated at Vanderbilt Hospital, and it's my understanding it has not been unknown for some patients undergoing chemotherapy to be prescribed, in the past, marijuana as a means of dealing with the side effects of chemotherapy." Gore pointed out that his sister's physician was the former head of the American Lung Association. "Her doctor was one of the very best in the entire world, and his view of the prevailing science then was that it might be efficacious."
Former Tennessee Gov. Lamar Alexander, a Republican who endorsed Bush, had signed a law making medical marijuana, provided by the federal government for state research programs, legal in Tennessee. The Tennessee law was repealed in 1992 but similar laws remain effective in 13 states. Since the mid-1980s, these state programs have not been operating, due to the inherent difficulty of getting access to federal marijuana.
Although seven state public health departments actually implemented programs, they all quit after having to cope with a prohibitive federal bureaucracy. "It is essentially impossible for state governments to obtain federal marijuana for their research protocols," says Mary Lynn Mathre, the clinical addictions consultant to the University of Virginia Health System and president of Patients Out of Time, a nonprofit organization dedicated to educating health care professionals and the general public about therapeutic cannabis.
These days, medical cannabis users in Tennessee risk the same penalties as any other person prosecuted for violation of state marijuana laws. While most acknowledge that patients generally aren't the target of law enforcement, patients nevertheless found guilty of possessing even one medical marijuana cigarette face up to a year in jail and a minimum $250 fine. Those growing medical marijuana can face up to a 12-year sentence for cultivation.
Not all Tennessee officials support this harsh policy, however. State Sen. Steve Cohen, a Memphis Democrat, takes a compassionate stand on the issue. "If people are in a critical state, if they are dying, then I think they should have anything that God has provided on earth to eliminate their pain and suffering," he says. "Even for people who are not dying, but are in serious pain, marijuana should be permitted by prescription from a qualified physician. I have had several friends over the past 20 years who have died from cancer, and they found that marijuana positively benefited them, reducing their pain and allowing them to eat. There but for the grace of God go I, and if I were ever in that situation, I would hope that my last days could be relatively pain-free and comfortable. I don't think that politicians should interfere with that process."
Recent polls indicate 70 to 80 percent of the public approves of medical marijuana being used by the general population. Yet when decriminalization advocates push for reform, the government counters that there simply isn't enough research to warrant the reclassification of a potentially dangerous drug. Dr. Randolph Smoak (no pun intended), president of the American Medical Association (AMA), spoke to Tennessee Rotary Club members in April, claiming that the government should examine the medical effects of marijuana before making any changes in policy. "We don't know if it has medical value," he told the Chattanooga Times Free Press. "We've told the FDA that [it] ought to go and find out."
McMahon finds it hard to believe that the president of the AMA is unaware that the FDA has been using marijuana to treat patients for over 20 years.
This call for evidence operates in a circular fashion, as the drug laws themselves have prevented the accumulation of much data. Legitimate scientists who seek to perform controlled studies on cannabis face a daunting bureaucratic gauntlet. Additionally, officials have repeatedly ignored the findings of their own commissioned research panels, which argue that marijuana is a relatively safe substance and has medical applications.
Meanwhile, as attorneys and pharmaceutical executives play politics and debate where to draw the line, sick and dying people like George McMahon continue to be arrested.
George extinguishes his government roach as a blazing sun descends behind him on the lake. It seems unreasonable to him that our nation can lock patients in prison, strip them of their voting rights, confiscate their property, and destroy their families, all because it seeks to eradicate a natural herb that has no fatal side effects, was used medically for thousands of years, and is less harmful and addictive than tobacco or alcohol. "I want people to know that I am just a normal guy," he says. "I'm not an activist, but I do believe that every sick patient in America should be able to make these personal choices without going to jail."
It's 1985, and a 14-year-old boy in the suburbs has just received his first shipment from the Columbia House Record & Tape Club: 12 albums for a penny, including Duran Duran's Rio, Thomas Dolby's The Golden Age of Wireless, The Police's Ghost in the Machine, and Billy Joel's The Stranger. The box arrives on a Saturday afternoon, and late into the evening on Sunday, the boy is still working his way through the package, playing each record from start to finish, savoring every song. Overnight, his music collection has doubled.
Now it's 1999, and another 14-year-old boy in the suburbs has just received his first CD burner. He hooks it up to the family computer and goes online to find some of his favorite modern-rock songs, like Barenaked Ladies' "One Week," Orgy's cover of "Blue Monday," and an Everlast song whose title he won't remember two years later. In those ensuing two years, this boy will burn about 500 CDs, some for his personal collection, some for friends.
Two years later, the same kid has given away or lost all 500 of those CDs. Asked about that very first mix CD he made, he says, "I threw it away...no reason."
Stories like this one are happening all over the country. Where young people once expectantly waited for packages in the mail or made eager trips to the record store, now they simply log on to the Internet and download the songs they want. Indeed, if you pay attention to the headlines of your daily newspaper, you can't help but notice that one of the most persistent stories is the impact of technology on the business of recreation in America. But while it's debatable whether the computer age is as pervasive as the predominately white, middle-class American media think it is -- statistics show that households with computers are still in the minority -- there's no denying that it's only a matter of time before the potential of a wired world trickles down to almost everyone. When that happens, the issues being debated by the early adopters in their overheated chat rooms will have long since been decided by those very same people.
Most pertinently, the struggle between the content providers and the consumers -- the latter of whom have become accustomed to receiving the wares of the former for free, thanks to the efforts of certain entrepreneurial radicals -- may well have been resolved, by treaty or by legal obliteration. The biggest music news of 2001's first half was the court ruling against Shawn Fanning, who created a service called Napster, which allows Web surfers to connect with select members of the online community who have converted the hottest new CDs into easily transmitted digital files.
Before Napster, the buzz was around MP3.com, a Web site that was supposedly providing the same easy access to ripped-off tunes. But now MP3.com has been seen by the music industry as more of a godsend. The MP3 technology may be what is allowing a clean transfer of pirated music files, but MP3.com is more concerned with providing songs by artists who want their work to be swapped around. And MP3.com has expanded its service, providing a way for artists with no label affiliation to sell made-to-order CDs to fans and strangers, and even paying the artists -- ASCAP-style -- for each download their song receives.
So which is it? Will the availability of free music online mean that musicians get their work in the hands of more people, and thus potentially make more money? Or will a generation raised on free music find no reason to spend more than the cost of their power and phone bills -- and a 49-cent blank CD -- to hear what they want to hear? Will the record industry collapse?
Those are the questions that keep overpaid record company execs up nights, but there's an even more interesting series of questions for those of us civilians following the fluctuations of the music business: Will the rising generation relate to music differently than the generations before? Will their tastes be broader, less dictated by radio and MTV? Will they be more fickle, burning out on songs before they've even listened to them all the way through once?
Will anyone ever again get excited by the idea of 12 records for a penny?
Meet Happy Cow. He's the second 14-year-old -- now 16 -- whom we met at the top of this story. Happy Cow was a name he adopted when he became a "courier" -- someone who helps distribute pirated files on the Internet -- and since his real name might conceivably get him in trouble with the authorities, the nickname will have to suffice. He's a bright, good-looking kid, the son of a computer-savvy guy who has a job helping to maintain the network for one of the city's biggest employers. Happy Cow has been into music off and on since he was a toddler, letting his interest wane when other interests took hold -- video games, movies, sports, and, most enduringly, computers.
He plans to work in some sort of computer-related field when he gets out of school, perhaps in Web design, and he plans to make money. When he got his first CD burner in April 1999, he began taking orders from classmates at his private school. He currently charges $5 to burn a CD with a mix of songs or $3 to burn an artist's entire CD, which takes less time and searching. Happy Cow did well for a while, but "now everybody has CD burners," he says, "so my business has kinda disappeared."
As a hobby, not for any compensation, Happy Cow set himself up as a courier. The hierarchy of Napster-aided music-swapping works this way: There are "rippers," who get hold of the newest stuff -- often via promotional discs sent to radio stations and newspapers -- and then encode the files for uploading onto a Web site. Couriers go looking for those files, and when they find them, they transmit them to as many other Web sites as they can, as fast as they can. In exchange for their diligence, they get the respect of their peers and often get tipped off as to where to find new music first.
But now Happy Cow says he's getting out of the courier biz. "I [don't] have the time. To stay on a site, you have to be the week's highest uploader." School's getting in the way. Still, he tries to stay on top of the latest rips out there in cyberspace, mostly for the sake of his friends. His own tastes run toward "alternative, but I listen to some rap, because that's what gets released [to the Internet] most." Happy Cow's favorite discs that get ripped are the promo-only modern rock CDs that get sent to radio stations, with 16 or so new cuts from an assortment of acts. "They're edited [for content]," he gripes, "But that's only a real problem with the urban radio promo-onlys."
In Happy Cow's experience, "The demand is for unreleased rap, mainly. I ripped U2's Achtung Baby -- nobody wanted that. There's no market. People aren't going to waste their time, their bandwidth, and their drive space on old alternative stuff." And even new alternative stuff doesn't go over big with his circle. Demand-wise, "Limp Bizkit's biggest is comparable to a mediocre rap release."
Asked if he feels bad about pirating music and taking money away from the musicians he likes, Happy Cow freely confesses that he does. "If I had the money, I would [buy the CDs]. I used to prefer to have a real copy. I would prefer to support the artist." But he knows that he isn't the type to take care of his music. Most of his current collection is "all basically just put by the parking brake in my car. If one gets scratched up, I just burn it again. The lifestyle that I have, a $16 CD wouldn't last long at all."
That's backed up by a look around his room, which features fluid-caked fast-food containers, dirty clothes, and stacks of CDs that have toppled into the middle of the floor. Happy Cow says that he recently stepped onto a pile of un-cased Dave Matthews Band CDs and snapped them all, and the last CD he actually bought -- one of his favorites, by Linkin Park -- he lost a few months after he got it. Will he shell out money to buy new DMB and Linkin Park discs? He shakes his head no, saying that he'll just find them online. "I've already paid for it once," he says. "I don't deserve to pay for it again."
L.A.-based industry player Noah Stone -- former director of the grassroots organization Artists Against Piracy, now the executive director of the more powerfully connected Recording Artists Coalition -- believes that the Happy Cows of the world are only going to grow in number over the next decade. Although he doesn't begrudge them their ingenuity in getting music for free, Stone feels that something has to be done to ensure that musicians continue to make money off their craft and that Happy Cow continues to be a satisfied customer.
The argument often given by the apologists for piracy is that the music industry has kept prices artificially high for years, charging an average of $16 for compact discs that cost a fraction of that to produce (recording costs and marketing inclusive). Stone believes that this defense is simple justification, derived after online piracy became widespread. "I don't think that people were complaining too much until they could get it for free," he says.
Nevertheless, Stone does sympathize with that argument, if only because he feels that the record industry has given too little of that padded profit to the artists who make it possible. Stone is actually one of those artists himself, having recorded a solo album that was released by Domination Records in 1995. Now the 28-year-old singer-songwriter-activist distributes his gently swaying electro-ballads and crunchy guitar anthems via MP3.com, where he has more control of the product and gets more direct satisfaction (emotional and financial) when a listener downloads one of his songs.
Taking advantage of the technology -- harnessing the new ways that consumers are accessing music -- is what Stone encouraged through Artists Against Piracy. "The fact that people have had access means that the desire has been created," he explains. "People have come to experience music in a new way, and that needs to continue. We need to keep our eyes open...and encourage, rather than discourage. We need to realize that the whole business will change as a result of technology."
Focusing on the future is what led Stone to his new post at Recording Artists Coalition, which has already testified in front of Congress -- via co-founder Don Henley -- about copyright issues. But the group is just as concerned with making sure that the music industry keeps the artist in mind as times change. Stone says that he's already attuned to how small innovations can lead quickly to new consumer habits. Although he doesn't download illegally supplied song files, he does burn CDs from legal files and from other CDs. And that change in his habits has come naturally, in the same way that his TV viewing has been altered since he bought a TiVO digital recorder. "It's revolutionized the way I watch TV, and I can't go back," he says.
Thinking about his own entertainment lifestyle has made Stone realize that the traditional metaphors for online music distribution -- that it's like radio, and that people who download pirated songs are like regular radio listeners, scanning across the dial -- just doesn't wash. "Radio is extremely promotional," he says. "But it sells records; it doesn't cannibalize sales. As I see it, [the Internet] is not a promotional tool, it's the whole ball game. Ten years from now, it may be the only way that people get music."
Stone believes that CDs will still exist, but that for them to have any sort of sales appeal, the discs will have to be loaded with extra features and to be sold for premium rates. He reiterates that he has no problem with this natural evolution, so long as it doesn't prevent artists from profiting from their work. It doesn't matter that computer owners who listen to music online are still a minority, or that computer owners period are still a minority. What's important is that, as the technology develops and becomes more widespread, musicians are given their fair shake.
The Washington, D.C.-based Future of Music Coalition believes much the same thing, although it's working from an arguably more radical position, one informed by the struggles of independent musicians. "For too long," the group's manifesto points out, "musicians have had too little voice in the manufacture, distribution, and promotion of their music on a national and international level and too little means to extract fair support and compensation for their work. Manufacturing and distribution monopolies concentrate the power of over 90 percent of music sold into the hands of five labels. With huge media mergers continuing to consolidate the decisions of what to play and promote, it becomes more and more difficult for artists to gain exposure through the few remaining coveted radio spots."
In this light, Future of Music executive director Jenny Toomey considers the Napster question "a red herring," at least as far as independent musicians are concerned. "In this environment, it is impossible to reduce the value of peer-to-peer file trading to one that is black and white or good and bad," she writes on the group's Web site.
Toomey knows something about the musician's struggle. She led her own indie rock band, Tsunami, and released records by herself and others on her own label, Simple Machines, from 1990 to 1998. That experience of trying to get heard in a market dominated by corporate money is precisely what Future of Music is concerned with: making sure that corporate media and big money don't dictate the outcome of online music distribution.
Thus the Napster case has been of much interest to Toomey and her organization. "If there are so many people using this technology," she says, referring to Napster and Napster-like services, "then the regular distribution channels are not serving them and not serving the artist." She's worried about "the effects on free speech" when the government gets involved in regulating content, and she sees the Napster case as another example of shutting something down rather than trying to make it work. "It's easier to find a way to make a file-trading network legal," she insists. "Instead of putting out more trash cans, we're licensing more litter police...it's just not the most logical way."
Toomey also thinks that people can be trusted more than the government or corporations think. "People pay for cable," she says. "They pay for bottled water. People don't fill buckets from the public water fountains and take them home." And access to free water doesn't affect people's thirst, according to Toomey's scenario, so she doesn't fear that the explosion of free music will lead to music having less market value. "Does having the latest Bruce Willis movie on video devalue that film?" she asks, drawing a parallel between cheap movie rentals and first-run theaters. "Probably not."
Jason Pitzer, who books shows clubs and performance halls, says that the club experience has remained a marketable property despite the popularity of the Internet. "The Internet doesn't affect us right now. Well, the Digital Club Network [which Webcasts live music] might affect us. But the live experience is the live experience. The fact that movie theaters are still happening...that energy, that vibe...it's nostalgic. People don't want to let that go. Not yet." If anything, Pitzer feels that the difficulty making money off music in an age when almost anything can be gotten for free online will lead to a revival of live music. "Bands will tour more," he believes. "And eventually, with pay-per-view [Webcasts], we could exceed capacity every night."
David Hooper, who sells promotional tips to independent musicians via his Web site, www.indiebiz.com, is similarly upbeat about the money-making prospects afforded by the Internet. He believes that given a choice, Americans would rather pay a reasonable fee for their entertainment in exchange for easy access. "Never underestimate the laziness of the American people," he laughs. "We can't even return our videos on time." Last year, as an experiment, Hooper and a friend tried to find and download the most recent albums by *NSync and Britney Spears, to see how convenient and listenable "free music" could be. He says that the downloads took two hours, the quality was poor, and some of the songs abruptly cut off. Getting gouged at a record store would've been more fruitful.
At the same time, Hooper argues that pirating is simply a part of how the Internet operates now, and it helps keep prices fair for consumers. "AOL used to charge $1 a minute and people had to pay like $800 a month, so folks were pirating [the service]. Now that it's $10-a-month flat rate, it's easier for people to pay than to steal." Hooper has even thought of the best way to get people to pay for the music they can now get for free: "The average American spends $4.50 a month on music. It's a $40-billion-a-year industry. Well, what if we gave everybody access to everything in a stream for $12.95 a month. We've tripled our money! Give it to 'em on a cell phone. Once we make it idiot-proof -- once we put it on TV, say -- that'll be the future. Make it cordless, put it in cars, into gyms....
"Do you know why TV shows have live bands?" he continues. "Because of the [musicians'] unions. People were furious when recorded music came around." The furor over online music is the same sort of thing, Hooper suggests: a response to the fact that new technology interferes with what have come to be reliable revenue streams. He adds that he's used Napster and similar services, although only for listening, not for burning -- "I also pay for shareware; it's a karmic thing" -- and that the easy access to a wide variety of songs "has gotten me excited about new music."
Still, Hooper acknowledges that it's not really post-collegiate Web surfers like himself that the music industry is worried about. "Five-year-olds who haven't been socialized to buy CDs, what will they be doing in 10 years?" he wonders. But Hooper sounds a confident note, asserting that "we'll have the royalties figured out by then." Perhaps MP3.com offers the best model of this, offering free downloads for the curious as well as a service that allows users to pay a nominal fee to have a real CD by a band they like. Or perhaps recorded music will always be free and musicians will find some new way to make money at their trade, just as the old bandleaders learned to stop relying on radio and TV performances for their daily bread.
Pitzer and Hooper represent a younger, newer generation of entrepreneur. But plenty of artists fall into a different demographic altogether. Take Eminent Records, which boasts a roster of folk and country acts who appeal more to sophisticates than to rebellious teens with cutting-edge hardware. Eminent president Steve Wilkison doesn't have to worry much about online music piracy, but he says he'd love it if tech-heads were swapping MP3 files of his artists. The added attention, he points out, would be worth any potential lost revenue. "For most of the artists we're working with," being sampled on the Internet "would be very beneficial to helping them widen their audience.
"I come to this as a fan," he adds. "I find at least in my own personal experience that if I come across something that I like, then I'll buy it. Back in the '70s, we'd tape songs off the radio, and it rarely interfered with us buying the albums." As to the question of whether increased access to music means that young people burn out on their favorite musicians more quickly, Wilkison attributes that trend more to the disposability of our on-the-go-culture. But he also blames the major labels: "I think it's a reflection of record labels' inability to help establish artists as artists."
Ultimately, Wilkison isn't too worried about the future. If record sales go down, ticket sales might go up, or merchandise sales might. "The question is not just how many sales [an artist] is losing," he says, "but does it translate into sales somewhere else?"
It's understandable that musicians who already have lucrative careers would be panicked about what's going to happen to their royalty checks over the next decade, but what about artists who are still on their way up, who consider themselves as much music fans as musicians?
Adam Pawlowski of the rock band Bathtub Heroes has mixed feelings. He says, "I used Napster to find some out-of-print and import records. I think it is -- was -- a fine sampling tool, but I was really bothered by the overall sound quality -- too compressed, too spotty. And the idea of people going into each other's computers to lift files...that's just plain scary, isn't it?"
The Obscure's Mike Gogola, who works on robot design by day, is naturally more forgiving: "I felt that Napster being shut down was inevitable, which is a shame, because Napster is a lot of fun. Where else could you get a copy of the Transformers theme song or Leonard Nimoy's version of 'If I Had a Hammer'? Then again, MP3s sound like shit, so it's no great loss, I guess. As a local artist, my worries about online music piracy are nonexistent. I can't get enough people to pirate our stuff! I suppose that theoretically there's a line drawn in the sand where you go from wanting everyone to hear your music to wanting everyone to pay for your music, but we're certainly nowhere near that point."
Kenny Alphin, leader of luvjOi, is on that same wavelength. He has no problem giving his music away -- he gives his band's CD away free at every show. "I just love the idea of people hearing our music in whatever manner they are exposed to it," he says. "And I would like to think that the music is good enough that people would want to pay something for it sooner or later, knowing that it's the only way the artist will be able to continue doing it. Basically, the whole cybermusic thing is way too much to think about.... We just want to make music by whatever means and have fun."
Val Strain's band SparkleDrive is signed to a subsidiary of a major label, which made the local rock quartet's music available online first, before selling it in brick-and-mortar stores. Strain believes the whole controversy just re-raises the oldest debate in the arts. "Basically, I think it's maybe sticky evidence of how tricky it is to blend art with commerce," she says. "Art will roll forward -- it has to. If it's painters, [they] just want people to see and connect with what they've painted. Likewise with writers, guitarists, drummers: First it's the creating, and then it's the 'gotta-connecting.'
"One hundred percent, I can see why artists are thrilled to have their music listened to -- for free -- by many. But...I can totally understand why artists, not trying to be greedy, just trying to survive doing their art, would worry that Napster could send them back to their day jobs where they wouldn't have the time they need to create."
But just as artists need to create, so do consumers need to consume. So isn't it logical to assume that lowering the barriers between the two can only be beneficial to both? If artists withhold their work for fear of not getting paid, then the consumer will offer whatever money it takes to get access to it. If the online music distribution revolution means that record labels are no longer viable entities, it doesn't necessarily mean that the music business shuts down. It may just mean that it reconfigures.
The court ruling against Napster hasn't stopped online piracy, since the bulk of file-swapping is far enough underground that it takes insider knowledge to "get the goods," so to speak. But obviously, driving the act further underground assures that the casual Web surfer won't find it quite so easy to steal. Happy Cow, for one, says that he can still find stuff, but it's not what it used to be (and besides, his interest is waning).
What has happened, though, is that the very fear of piracy has raised all manner of new questions for the music industry -- about how to make money off music in the 21st century, and about whether the artists are ever going to see any of that money. Even in the days when a music fan could get excited about 12 records for a penny, the great deal was made possible because record clubs paid a lower royalty rate to the musicians whose work they sold so cheaply. To most artists, getting ripped off by pirating fans is nothing new -- they've been getting ripped off by their labels for years. And there's a fear that the music industry's drive to stamp out piracy is really a drive to control the potential revenue stream from online music, and to assure that it stays at a trickle for the music-makers.
So what happens next may be up to the consumer. If the record business doesn't eventually start charging more reasonably, the next generation of music buyers may increasingly start to look to the Internet for its music. At the same time, musicians will realize they don't need record labels when they can go directly to the fan. And if that happens, there may be a true revolution in what people listen to, how they get it, and who counts the money at the end of the day.
Eventually nowadays, all head cases, squirrel nuts, malcontents, and incurable nonconformists in the NBA seem to gravitate to the Los Angeles Lakers. Even more so than their crosstown too-irrelevant-to-be-rivals, the Clippers, this team is basketball's Island of Lost Luggage.
This is my theory anyhow, based upon observation if not pure science. As supporting evidence, I offer the following exhibits: Shaquille O'Neal, Cedric Ceballos, Robert Horry, Kobe Bryant, A.C. Green, and, of course, Dennis Rodman. Consider each briefly in turn.
There's Shaq, who, until his MVP performance this season, seemed to function as the world's biggest, slobberiest, most affectionate St. Bernard -- a boundless reservoir of bounding, unfocused energy. Like Bill Clinton's attention at a Miss USA contest, Shaq appeared to meander from one interest to the next: hip-hop recordings, movies, cool cars with loud stereos, Shaq Fu, and, somewhere in the midst of everything else, basketball. Or at least the parts of basketball that did not include free-throw shooting.
There's Ceballos, the ex-Laker who once, while momentarily intoxicated with a sense of responsibility, phoned the team's management to let them know he had taken his girlfriend to Lake Havasu City and wouldn't be available for the next couple of games.
Then there's Horry, who's never AWOL but never quite there, either. When he's not remonstrating to the refs about some perceived injustice, he seems to operate on a different plane, or maybe even a different planet, from his teammates.
Kobe, who joined the Lakers as a teenage blank slate, soon came to recognize himself as the Air-Apparent to Michael Jordan, capable of swooping into the lane and converting into 2 points any ball flung in the general direction of the basket.
Green, meanwhile, officially holds the record for most consecutive games played and, unofficially, also owns the marks as the league's oldest virgin, oldest non-pot smoker, and oldest non-pot-smoking virgin. Those last three accomplishments, as laudable as you may find them, definitely set A.C. apart as a free spirit if not some radical subversive.
Do we even need to mention Rodman, whose own well-practiced weirdness seemed to upstage his teammates and therefore disrupted the Lakers' chemical imbalance?
Is this where we hear from Eddie Jones, whose very normalcy supports our thesis? (The Lakers found it necessary to trade him to Charlotte.)
Can you conceive of any position with greater job security than the team psychologist (or battery of psychologists, even) for this bunch?
Surely, you'll say, not every square peg in the NBA has worn the purple-and-electric yellow of the Lakers. But this proves nothing.
If my theory is correct, Rasheed Wallace, whose deportment in front of the refs makes Rodman look like a Promise Keeper, will migrate south from Portland within a few seasons. Likewise, there's still time for John Starks, the world's only portable volcano, to relocate to La-La Land. As for Charles Barkley, Vernon Maxwell, Prince Zandokan of the Planet Lovetron (a.k.a. Darryl Dawkins), Mark Aguirre, and Lloyd "World B." Free, well, they just ran out of time.
I raise this theory not to condemn the Lakers -- whose Simpsons-esque chemistry would make them wonderfully entertaining to watch were it not for the noise hazard created by their uniforms. Rather, I offer it to announce my support for their coach, Phil Jackson, as the next president of the United States.
Astute readers may recall that Larry Joe Bird was endorsed in this space not two years ago for the highest office in the land. But the media are nothing if not fickle in favor. And, besides, changing times call for different leaders.
And besides all that, it wasn't until this year, his first with Los Angeles, that Jackson's superb qualifications became apparent.
In Chicago, it was easy to understate Phil's contributions -- even though motivating Rodman for two seasons was a labor for which even the gods lacked the audacity to impose on Hercules. After all, didn't those championship teams possess the greatest basketball player in history?
And wasn't Michael like a coach himself, imposing his indomitable competitive spirit upon his teammates?
On the other hand, consider how much those pre-Jackson Bulls resembled the pre-Jackson Lakers: one unstoppable player surrounded by capable supporting characters who, together, never seemed to mesh into anything more than an intriguing pile of parts.
Del Harris, one of the NBA's most successful coaches, proved unable to coax any real consistency out of the Lakers. Even Magic Johnson, who as a player made everyone around him better, threw up his hands in despair after a brief stint as coach of his old team.
Today's players, Magic declared, were selfish, stubborn, and nearly impervious to direction. They can be like the participants in mule races described by William Faulkner, in which the winning mule invariably is the one whose chosen path happens to coincide with that of the track.
The experiences of Harris and Magic illuminate an unhappy truth about today's NBA: For coaches, the most reliable predictor of success is neither knowledge of strategy nor great accomplishments in the collegiate ranks. Just ask John Calipari, whose reputation transformed from genius to dim bulb during his stay in New Jersey. Or ask Rick Pitino, whose miserable Celtic squad no longer even listens to him.
More than anything, coaching in the NBA today demands the skills of someone who, like Mickey Mouse in the famous old cartoon, can conduct an orchestra within the vortex of a tornado. Motivating today's millionaires, at least half of whom see themselves as God's unique gift to basketball, requires a delicate balance between mollycoddling and cajoling. In this league, disciplinarian coaches soon change their styles or come to grief.
If you can't relate to today's players (paging P.J. Carlessimo), you'll find yourself relegated to the broadcaster's booth, or, worse, to coaching the Clippers or Warriors. Which means that, while you don't have to be only a step or two ahead of a straitjacket to coach in the NBA, it probably helps.
Which, of course, means that Jackson stands without equal among the suit boys on the sidelines.
His study of Buddhism makes him the only coach laid-back enough to remain unfazed by Rodman's antics, Shaq's incurable ineptitude at the foul line, and the unending parade of potential distractions presented by the capital of glitz and hype.
Scientists are as yet unable to replicate Jackson's precise formula -- otherwise, rival coaches would be setting up their own little ashrams -- but somehow his combination of Zen-dude mysticism and teaching of Sioux lore (quick, name one other NBA boss with a White Buffalo shrine) induces his mules to run in the same direction. In Chicago, for example, Jackson helped gain acceptance among the Bulls for Rodman by teaching that Dennis the Menace functioned as a Contrarian, a role that was tolerated and even respected among the Sioux.
Jackson's stunning success with the loopy Lakers makes you naturally wonder: What could this guy do with the even more unmanageable, more egomaniacal cast of blowhards, poseurs, and mountebanks in Washington?
With Phil getting everyone to focus on their karma, I can envision Trent Lott and Bill Clinton embracing as allies. I can imagine a peaceable kingdom in which the lion lies down with the lamb and Tom DeLay lies down, so to speak, with Barney Frank. I can picture the NRA and Million Mom Marchers working civilly.
W. and Al have it all wrong by rushing to the middle. In a culture like this, with movers and shakers who make the Lakers look like the residents of Walton's Mountain, we need somebody who's proudly way off center.
If Phil can't do it, no one can.