Issue #43, Fall/Winter 2011
The Death Penalty: Righteous Anger or Murderous Revenge?
A roundtable discussion
The Death Penalty: Righteous Anger or Murderous Revenge?
In the spring of 2009, a business professor at Texas Tech University, where I also teach, e-mailed and asked if I’d meet him for coffee to chat about—of all things—the death penalty. My friends warned me that Hans Hansen (a man with a suspiciously cartoonish name) was either a crackpot serial killer himself or some wannabe writer with a book manuscript he expected me to critique. At Starbucks, he sat across from me at a tiny two-top and solemnly articulated every fact he knew about capital punishment in the state of Texas. I assured him I didn’t support the death penalty, either. He looked at me skeptically, then asked if I knew what defense attorneys call people who don’t believe in executing criminals because there’s a chance one of them might actually be innocent.
I shook my head no. Who wouldn’t be against executing people who were wrongly convicted?
“They call you ‘automatic killers,’” he said.
In the months following our coffee, when I, too, began volunteering with the Texas Regional Public Defenders Office for Capital Cases, I learned that 95 percent of defendants charged with capital murder have confessed or face incontrovertible evidence. So, if you’re one of 12 jurors deciding whether to kill the accused based solely upon his or her innocence, you’ll find yourself voting for death pretty quickly, almost automatically—which is, by the way, illegal. The issues of “mercy” and “future danger” are the only permissible determining factors in the punishment phase, though most jurors immediately set their minds once guilt is established.
I also learned that Texas has carried out 37 percent of the 1,254 executions in this country since the Supreme Court lifted the moratorium in 1976. That’s four times as many as any other state. According to the Texas Department of Criminal Justice Web site, as of July 2011, 70 percent of the 305 inmates awaiting execution on Texas’ death row—and 84 percent of the inmates who were teenagers at the time of their offenses (32 of the 305)—were minorities. And while proponents of the death penalty sometimes argue that it’s wrong to spend taxpayer money to house and feed killers, The Dallas Morning News reported that in Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone at the highest security level for 40 years.
Equally disturbing are the procedures in death penalty trials in Texas. Even though a capital murderer can receive only a needle in the arm or permanent lockup (life without parole ever), jurors aren’t told what happens if they don’t find for death, and so they frequently vote for death to avoid “setting a murderer free.” Furthermore, the instructions to the jury imply that it takes 10 jurors to vote against death, though it only takes one. It’s illegal for defense attorneys to clear up the instructions during the trial, and when deliberating jurors ask the judge for clarification—as they usually do—the judge sends them a note stating that they already have their instructions and he cannot help them further.
My connection with the Texas Regional Public Defenders Office has introduced me to a lot of people I wouldn’t have met otherwise: the defendants, of course, all of whom I’ve grown to care about, and a network of attorneys and mitigators who are hardly the slick lawyers I expected—the kind with jazzy cars and mansions and obscene paychecks. Instead, they’ve opted for salaries three times less than what their peers earn in private practice, so they can help defendants—all of them indigent, all of them from severely abusive childhoods—receive fair trials. Additionally, I’ve met a new group of writers who work to research and report the truth about capital punishment. In the fall of 2010, the Texas Book Festival hosted a panel of three such authors, which I moderated and which C-SPAN’s Book TV aired. Together, these writers offered a rounded conversation on a hard topic, one so difficult to address that even a discussion of it sometimes riles people to anger. The interview that follows is a continuation of our conversation, with some new questions pertinent to this issue’s theme of anger and revenge. —Jill Patterson
THOMAS CAHILL holds degrees in classical literature, philosophy, film, and dramatic literature, and is best known for authoring The Hinges of History series, which includes How the Irish Saved Civilization and Desire of the Everlasting Hills: The World Before and After Jesus. He is also the author of A Saint on Death Row: The Story of Dominique Green.
DAVID R. DOW is the founder and current director of the Texas Innocence Network and the mitigation director at the Texas Defender Service, a nonprofit law firm that represents death row inmates and works to reform the judicial system. His books include Executed on a Technicality and The Autobiography of an Execution.
ROBERT K. ELDER is a journalist who teaches at Northwestern University, serves as the regional editor for AOL's Patch.com and has written for the New York Times, Chicago Tribune, The Boston Globe, and other newspapers. His book, Last Words of the Executed, offers a meticulously researched and unbiased history of one ritual involved in the American process of execution.
JILL PATTERSON (moderator) teaches creative writing at Texas Tech University. Her prose and poetry have most recently appeared in Texas Monthly, Colorado Review, Carolina Quarterly, and The Ledge. She's the founding editor of Iron Horse Literary Review and the copyeditor for Creative Nonfiction, and serves as a case storyteller for the Texas Regional Public Defenders Office for Capital Cases.
Patterson: Let’s begin with a question about beginnings. Could each of you describe the definitive moment when you knew you had to write about capital punishment?
Cahill: In late 2003, while on a book tour for my historical series, I was asked to visit Dominique Green. Sheila Murphy, a retired Chicago judge who’d become one of Dominique’s attorneys and whom I’d previously met in Rome, learned that I’d visit Houston at the end of my tour. I was reluctant to change my plans and remain in Houston an extra day, but I couldn’t say no to Sheila. The unwelcome words of Jesus (Matthew 25:36), reminding us that we have an obligation to visit those in prison, kept passing through my mind.
When I met Dominique, I was so impressed. He was such a full, complete human being. I never set out to write a book about capital punishment; I just had to tell Dominique’s story. Once Texas killed him, his story deserved to be memorialized.
Dow: For me, there were two moments: one when I first knew I had to represent a death row inmate and another, distinct moment when I knew I needed to write about it.
In the late 1980s, death row inmates were entitled, as they are today, to pursue both state and federal court habeas appeals. In essence, the writ of habeas corpus is a legal device prisoners use to challenge the legality of their convictions or sentences; it’s a very complex area of law. However, back then, inmates didn’t have the right to counsel during these complex proceedings. So Congress funded a small group of specialists who could recruit, train and advise non-capital specialists to work on a death row case or two.
Meanwhile, I was teaching habeas corpus law. Between the mid-1980s and the mid-1990s, and perhaps a little later, the most important habeas cases decided by the Supreme Court were death penalty cases, including Atkins v. Virginia and Batson v. Kentucky. I thought I would understand these cases better if I learned death penalty law, and in an effort to self-educate, I went to death row one day with a lawyer from one of Congress’ newly created resource centers. There, I met a man who was scheduled for execution in two weeks, and he didn’t have a lawyer. So the resource center lawyer asked if I’d handle the case.
I knew nothing about death penalty litigation. On top of that, I wasn’t opposed to the death penalty. But I figured I’d do a better job representing the inmate than he’d do representing himself, and I also believed we shouldn’t be executing people who didn’t have lawyers. So I took the case—though I swore it would be the only death penalty case I’d ever work.
Which brings me to the second moment. When I started taking death penalty cases, I was a young law professor. Single. I could spend all night working a case, and while the dog wondered where I was, no one worried about me or had to eat dinner alone. Eventually, I got married, and my wife Katya and I had a son, Lincoln, who is now 10. One day, when he was 3, I came home from the office after a bad day—I’d told a client his appeals had been denied and he would be executed the next day—and when I walked into the kitchen, Lincoln looked at me and said, “Dada, you seem glum.” Three-year-olds aren’t supposed to know the word glum, much less associate it with their dads. They’re supposed to play games or read books or sing songs with their dads. I’m a willful person. (Katya might use a different adjective, but I’m sticking with willful.) That night, I told Katya I wasn’t going to let myself seem glum to Lincoln again, no matter what.
A week and a half later, on another bad day, I drove home, parked in the garage and finished listening to a Norah Jones song; then, I plastered a smile on my face, put a bounce in my step and went bounding into the kitchen—the new me. I floated over, kissed both Katya and Lincoln, and asked about their days. Lincoln said, “Dada, you seem glum.”
At that moment, I learned what every parent learns: There’s no mask your children can’t see through. So I decided to write a book about being a death penalty lawyer. I thought that by putting the words down and leaving the pages at my office, I might leave the glumness behind; when I got home, the frustrations and disappointments wouldn’t intrude into my life with my wife and son.
Elder: I was watching Steve James’ documentary “Stevie.” I’m giving away the end a little, but someone goes to jail. At the time, I was dating this lovely lawyer for the Illinois Department of Corrections, and she said, “Let’s look him up and see how he’s doing.” After looking at the DOC’s Web site, I marveled at how much public information was available about inmates. My girlfriend said, “That’s nothing. You should see Texas’ Web site.”
For the next few hours, I poured over Texas’ prison Web site—especially its death row information pages. It’s a fascinating record of these men’s lives: details of their crimes, appeals processes, last meals and … last words. The last words were the most compelling. After a little digging, I became appalled that there was no modern study of last words and how they’ve changed throughout history. My interest wasn’t political; nor did I have an activist’s agenda. I simply became obsessed with two questions: If these are the most outcast, feared members of society, why does it remain of value to record what they say, and what can we learn from doing so?
Patterson: Similarly, Tom, your works frequently glean the lessons of history—in particular, how a group of people or one event can alter the future. Explain why you devoted significant portions of your book to the organization known as the Community of Saint’Egidio and to Archbishop Desmund Tutu’s visit to Huntsville. At a press conference, Tutu says to the reporters, “You are a very generous people, Americans, and it is very difficult to square with your remarkable vindictiveness.” Can generosity and revenge walk hand in hand? What role does religion have in the conversation about the death penalty?
Cahill: In my study of major movements in Western history, I’ve concluded that every society has its dream and its nightmare. To concentrate only on the dream or the nightmare falsifies not only history but the hearts of human beings, which are the ultimate fonts of history.
In the United States, our nightmare is racism: We committed genocide on the original Americans, enslaved a second race and dropped the atom bomb on a third. (We would have never dropped that bomb on Europeans.) At the same time, our dream—our singular social experiment—is making real the proposition that all people are “created equal.” My friend Desmond Tutu, who visited Dominique and described him as “a remarkable advertisement for God,” was right to call attention to the schizophrenia in the American character, both incredibly generous and incredibly vindictive.
At the root of our vindictiveness lies the shrunken temperament of extreme Calvinism—Puritanism, if you like—which delights in vindictive racism while calling it “justice.” The antidote to this cultural impasse lies in a generous, forgiving religious vision, as exemplified by Archbishop Tutu and the Community of Saint’Egidio, which is conducting a worldwide campaign to eliminate the death penalty.
Patterson: David, as an author-attorney, you must maintain attorney/client privilege when you’re writing. This is, boiled down, the dilemma all creative nonfiction writers face. You’ve had to create composite characters, use pseudonyms, alter timelines and mix up the details of cases to keep your defendants unidentifiable. This type of juggling triggers the hot criticism a lot of memoirists face. Still, as Leigh Hunt, an essayist writing in the 19th century, said, there are two sides to every story: the factual account and the emotional truth; a world we measure by rulers and numbers, and a world we measure by our hearts. Is your book honest and factual? Is that even what’s important? And does your dilemma as an author speak specifically to the problem you have noted as an attorney—that in legal procedures, facts matter, but the story matters more. Tell us what that means.
Dow: Believe me, I was hyper-sensitive to recent criticisms of so-called memoirs that are factually inaccurate. There are, indeed, inaccuracies in my book. I think, though, that while the inaccuracies would make the book problematic as a volume of history, they have no impact on it as a book about what it is like to be a death penalty lawyer and no impact on my description of how the death penalty operates.
Here is what I mean: My objective was to write a book about things that happened, without allowing people to identify easily the people involved. So I would say that something happened in Bexar County when it really happened in Montgomery County, or I would say something happened in the prison when it really happened in the county jail, or I would say something happened in federal court when it really happened in state court, or I would describe a conversation I had with a district attorney when I really had it with an assistant attorney general. Those changes obviously have nothing to do with the emotional truth of the book, but I would even argue that they do not have any impact on the factual truth, either. Indeed, one detail it’s worth mentioning is that I haven’t heard criticism from a single prosecutor about the accuracy of the stories I tell. I suppose one explanation is that not many prosecutors are reading the book (although I happen to know a few who have), but I think the actual explanation is that prosecutors who worked on the cases recognize the cases and realize that I did not take any dramatic liberties. It was important to me to obscure the identities of the people in the book. I did not succeed entirely—I’ve gotten more than a handful of e-mails from people familiar with the cases who recognize the characters in the book—but I do think I succeeded by and large.
Patterson: Robert, Studs Terkel prefaced your book with perhaps one of the best compliments you could ever hope to receive: He calls you “a journalist of the noblest tradition,” i.e., you research and write about your topics from an unbiased, purely informative stance. And your book is balanced. It acknowledges the low IQs of some of the executed, the possible innocence of some of them, and the gruesome ways in which our methods of execution often fail before finally succeeding. For example, William Kemmler was the first man executed via the electric chair, and because he was so worried that the process was new and might hurt or not work, his final words became, not his prepared speech, but instructions to the warden, for him to take his time, tighten the electrodes and do it right. When the shock left Kemmler slumped over and his face and hands burned red, officials declared him dead only to have him heave back to life when they loosened the straps, and so they had to electrocute him again, this time until smoke came from the top of his head.
Your book also shows some of the more unrepentant, unsavory murderers. John Wayne Gacy, for instance, told a prison guard to kiss his ass as he walked to his execution in 1994. And your book describes the crimes of the executed lest we forget the acts they committed that landed the guilty ones where they are (you are careful to depict the murders in a brief, straightforward manner, no rubbernecking allowed). Why was it necessary to approach your research and writing from an unbiased stance?
Elder: It was paramount, from the start, to present the information from an apolitical vantage point. This wasn’t simply an exercise of giving a voice to the voiceless, which was Terkel’s life mission. It was about researching and documenting this ritual, what the content of the words were and how they’ve changed throughout history. Because of that, I had to remain neutral and report what I found, so that however you felt about capital punishment, you’d still be compelled by or interested in the history.
Patterson: According to the Death Penalty Information Center in Washington, D.C., 138 people have been released from death row since 1973 due to evidence of their innocence. My friend, Hans Hansen, is working on a mathematical formula to calculate the statistical likelihood that an innocent man has been executed. Tom, while you’ve stated that one out of every eight executed men is probably innocent, you’ve also said that “did he do it/did he not do it” isn’t the first question we should be asking. For you and David, is there room for the “special” cases argument, or is it more effective—even, in fact, more ethical—to argue as pure abolitionists?
Cahill: How can we sleep, thinking we may have ended the life of an innocent man or woman? Life imprisonment leaves open the possibility that we can later find a convict innocent. If we’ve already executed him, a subsequent exoneration will be ironic, nothing more.
Nonetheless, the first question we should ask is “Did the accused receive a fair trial?” The answer is almost always no. A racist system convicted Dominique, a system in which many prosecutors, judges and other lawyers have a political stake in convicting poor people and minorities, who are seldom allowed adequate legal representation. Especially in our Southern states and most especially in Texas, the very capital of vindictive Calvinism. As a young attorney in Texas told me, “The object here is to fry as many niggers as possible.”
The more sensational and horrifying the crime, the more likely the trial will be a rigged show and the conviction manipulated by outside interests. So let’s abolish the death penalty in all cases.
Dow: I’ve read Hans’ paper. I think it’s powerful, but I also think it’s irrelevant. Actually, many abolitionists criticized me a few years ago when I wrote an op-ed arguing that it was a mistake for opponents of capital punishment to focus on the possibility of executing an innocent person. First, most people on death row aren’t innocent; they did what we’ve convicted them of doing. If you’re against the death penalty, you’re against it even for them, but if you spend time talking about innocence, you inadvertently make it easier for the state to execute people whose guilt is indisputable. Indeed, in my experience as a death penalty lawyer, judges often don’t care about whatever legal argument I’m making if the guilt of my client isn’t in question. They willingly overlook every argument against capital punishment, and I think abolitionists are partly responsible for that.
Second, everyone knows we execute innocent people. The criminal justice system is made of human beings, and humans make mistakes. It’s that simple. Now, death penalty supporters are, in my view, wrong on the moral question of whether we ought to execute, but they’re not idiots. They know humans err. So that tells me that a thoughtful death penalty supporter has already decided that the price of executing an occasional innocent person is a price worth paying. In Texas alone, over just the past two or three years, we’ve executed three people who were probably innocent. And what has been the impact on death penalty supporters? Close to zero.
Patterson: Thomas, Dominique Green’s maturation while on death row and his positive influence over other death row inmates seem almost too good to be true. He wears a radiant smile and a rosary necklace, which hangs below his waist and contains 101 beads—each one representing a friend, mentor or spiritual guide whom he met on death row but who had since been executed. Even his victim’s family members wrote and asked that his death sentence be reduced to life without parole. Did you feel compelled, ever, to make certain that his behavior argued defiantly against the justice of the death penalty? Did he have any flaws that you softened for your book?
Cahill: I didn’t soften anything. Dominique was one in a million. Of course, he wasn’t perfect; no one is. But his right to justice should not be dependent on his character. Did he commit murder? The evidence presented at his trial failed to prove that to any reasonable person. He didn’t need to be given mercy, just justice.
Patterson: Here’s another issue in the debate. Tom, in your book, you explore Dominique’s childhood: how, for example, his mentally ill and alcoholic mother tortured Dominique and his younger brothers, even holding their hands over open flames, and how Dominique stepped in and suffered the punishment to spare his siblings. It would seem obvious that a brutal childhood could lead a man down the road to horrendous crimes, and, yet, a lot of people snidely label that the “abuse excuse.”
Cahill: You seem to assume that Dominique did commit murder. I don’t believe he did. But the extraordinarily sloppy procedures of his trial and the lost evidence make it impossible to prove or disprove anything at this point.
Patterson: Oh, yes, I see that now. My question does presume his guilt. Your book, of course, painstakingly covers all the facts that indicate Dominique was most likely executed for a murder he didn’t commit. He was at the scene, but not the triggerman. Which is actually a common occurrence: If the triggerman testifies against his cohorts, prosecutors sometimes spare him and pass death down to someone else. But, yes, see how easily I slid down that slope. This, in fact, serves as another excellent example of how the “did he do it/did he not do it” discussion can land us in trouble.
Cahill: Dominique did love his two younger brothers, and he single-handedly delivered them from much of the abuse he suffered. This cannot be doubted. How many comfortable middle-class people would have managed in his circumstances?
Dow: I must say that I very much dislike the phrase abuse excuse because it’s not an excuse. Being abused doesn’t excuse committing murder. At the same time, you show me someone on death row, and I can tell you his biography right away. People aren’t born murderers. They’re made into murderers. The number of men (and a few women) who have returned from Iraq or Afghanistan and committed terrible acts has shown people who are otherwise inattentive to trauma that humans can, in fact, be broken. My clients were typically abused as children in a manner that is literally unimaginable to your typical middle-class American. They were beaten, deprived, tortured both physically and psychologically, and sexually abused—and not only once, but repeatedly. A murder they commit years later isn’t, therefore, excused, but if you want to see how a human being can be broken and made to do things you would never in a million years think of doing, study one of my defendants’ backgrounds.
Patterson: David, you juxtapose your story as an attorney with your story as a father, in which you frequently judge yourself harshly, even contrasting your flaws against your amazingly bright and earnest son, whose perceptions are almost mystical. You juxtapose the story of Henry Quaker, a man who appears to be not only innocent but forgiving of the people who would kill him anyway, with the story of Ezekiel Green, who is hardly the type of man any of us would readily spare. Does your book tell the story of saints or of sinners? Why did you include your personal story, and your son and wife? And why did you feel compelled to include the story of Ezekiel Green since he’s the type of defendant who would seem to make lethal injection a logical punishment to most?
Dow: I tell people that if they are looking for a polemical book about the death penalty, my book is not for them, because the whole reason I wrote the book was to talk about my wife and son. A former student of mine, who was a prosecutor and is now a well-known defense lawyer, wrote me a note saying she thought my book was actually a love story. I think she is exactly right. I wanted to write about what it is like to try to be a decent husband and a good dad when you spend so much of your day talking to murderers and confronting lawlessness.
Now, the reason I chose the Quaker story as a central strand is ironic. I’ve said it’s a mistake for abolitionists to focus on innocence, and here I am writing a book with a central character who is innocent. But given that I really wanted to write about my relationship with Katya and Lincoln, I think it makes sense. When I have a client get executed, I come home and think about the things I could have done differently. I generally beat myself up for a while, trying to learn lessons for next time. Then I turn the page, and I say to myself, Well, I might have made lots of mistakes, but my client made the first one, and if he just hadn’t killed someone, my mistakes wouldn’t have mattered.
If your client is innocent, you don’t get to turn the page. The story ends with your own failures, and there is no initial failure on someone else’s part you can point to in order to assuage your own guilt. That makes those cases especially tough to bring home. And in that I was writing a book about bringing cases home, I had to tell the Quaker story.
Patterson: Have you ever represented clients whom you didn’t like, who you worried might “deserve” to be executed? In those cases, how do you handle your internal struggle and provide effective counsel?
Dow: I wouldn’t say there are people who deserve to be executed. Other people might think that, and I know what they mean. But the question of desert is a big question, and I don’t think I’m entitled to pass judgment on it. You’re absolutely right, though: I’ve had clients I didn’t like. It’s pretty clear in the book that I didn’t like Ezekiel Green. At the same time, I don’t think the state should have killed him. Maybe he needed to spend the rest of his life in prison so we in society could be kept safe from him, but I’m certain we didn’t need to kill him to protect ourselves.
There is one case that captures my feeling on this question more than any other: I had a friend who was murdered. Years later, the murderer wrote and asked me to represent him in his federal habeas appeals. The murderer didn’t know he’d killed a friend of mine. I wrote him back and told him I didn’t think he should be executed, but I wasn’t the right person to stand between him and the gurney. And I wasn’t.
Patterson: Robert, your book opens with the final words of Marmaduke Stevenson, a Quaker who was executed by the Puritans for returning to the Massachusetts Bay Colony to protest a law that banished Quakers from the colony and made their return a capital offense. Basically, he was preaching for punitive reform (which makes his last words an interesting choice to begin your book). Too, for each entry, for each final statement, either you or your publisher chose to give the final statements first and in bold face, and the descriptions of the crimes committed second and in a smaller font, without bold face. Are you certain your book doesn’t argue, however subliminally, against the death penalty? … Okay, I’m doing what interviewers always do to you: pushing you to go ahead and just “confess” which side you’re on. Why do you think it’s so important for people to pinpoint your personal stance on this subject?
Elder: I think they want to discover my bias because so much of capital punishment writing comes from one impassioned side or the other. People want to know if you’re on their side, or the other, so they can embrace or discount your work, based on their own feelings. If I chose one side, the reporting would be skewed. The book would either become a political football or be ignored by one side or the other, dismissed as simply preaching to the opposite choir. I wanted to write a book that was more useful and thought-provoking than that.
Patterson: In interviews, you frequently quote the final words that are somewhat humorous—though funny in a gallows sort of way. You know, the men who cheer for their favorite football team as their last words, or the young man who, while facing the firing squad, said his final request was a bulletproof vest. Of course, as writers, we’re always told balance is good, humor a relief to the somber, a back-and-forth motion that keeps the reader moving forward. Did you look for humorous last words to include? Why were they important to include?
Elder: I did need to look for them. They were important to include because they show the range of humanity in the book: Even under extremely stressful situations, on the brink of the void, people react in a variety of ways.
The one humorous entry I remember is also philosophical. In 1992, as Robert Harris was on his way to the gas chamber, he said: “You can be a king or a street sweeper, but everyone dances with the Grim Reaper.” He was quoting the comedy “Bill & Ted’s Bogus Journey.”
Patterson: Here’s an odd question I must ask all of you since I’m female: In most discussions of the death penalty, reporters and debaters use masculine pronouns, he and his, when referring to the defendants and the executed at large. The three of you are male, and with the exception of Sister Helen Prejean and Andrea Lyons, I don’t know of many other women who’ve contributed to the death penalty debate in a literary way. Are women somehow exempt from conversations about the death penalty? Is execution a form of death that is mostly masculine, affecting male defendants and/or “designed” by male ways of thinking?
Elder: I don’t think so. The fact that so few women are executed contributes to this perception, perhaps. There’s a very interesting book about this subject by Marlin Shipman: “The Penalty Is Death: U.S. Newspaper Coverage of Women’s Executions.” It addresses many of the issues you’ve brought up.
Dow: He/she is a stylistic point I confront when I talk about the death penalty. You might have noticed that when I refer to judges or lawyers, I say he or she. When I talk about my clients, I just say he or him. I have, in fact, represented two women in my career, but it would suggest a false portrait to say he or she when I am talking about death row inmates, because 99 percent of the people executed, and 96 percent of the people on death row, are men. It would be worse than an affectation to say he or she when talking about murderers, because it would imply that women are as big a part of this problem as men. That said, I do think that if we are talking about any other players in the system—whether lawyers, judges, abolitionists or death penalty proponents—men and women are equally represented.
Cahill: There’s little doubt, I think, that most murderers are male. Because she is more singular, a female murderer is inevitably surrounded by more in the way of literary lore: Think of Lucrezia Borgia and her poison ring.
Whether opponents of the death penalty are overwhelmingly male, I don’t know. Certainly, this is not true beyond the United States. Many vocal death penalty opponents in Europe, the Islamic countries and Asia are female. If it’s primarily a U.S. phenomenon, it may say more about Americans than about human beings. In any case, Sister Helen Prejean’s eloquent national campaign goes a long way toward righting the imbalance.
Patterson: Robert, you’ve been quite adamant, in the introduction to your book and in interviews, about declaring your book an apolitical examination of the death penalty, but were there any final words that had an impact on you, that made you ponder a defendant’s childhood or innocence and tempted you to one side or the other of the argument?
Elder: Folks on the political right say simply doing the book was a subliminal argument against the death penalty, but people on the left are mad, too, because I included new information about Julius Rosenberg and Sacco and Vanzetti, that suggests they were actually guilty. But the book is about the words—the actual words, the cultural climate they came from and what we can learn from them.
But, in partial answer to your question, Joseph Cannon’s last words always haunt me:
I’m sorry for what I did to your mom. It isn’t because I’m going to die. All my life, I have been locked up. I could never forgive what I done. I am sorry for all of you. I love you all. Thank you for supporting me. I thank you for being kind to me when I was small. Thank you, God.
Out of concern for Cannon’s well-being following a burglary conviction in his teens, Anne Walsh, sister of his court-appointed attorney, took him in. Cannon shot her seven times, was convicted of capital murder at age 19 and was executed 19 years later. The part that always gets me is “when I was small.”
Patterson: Your book closes with the words of Michael Delozier, who apologized and hoped his execution would bring the victims’ families some sort of peace. Afterward, the family told reporters his death had brought them justice. Including his words, then, argues both sides: A man convicted of capital murder and executed can feel remorse and, therefore, may have deserved mercy, which is one of the legal determinations in a capital trial’s punishment phase, but his case also suggests that execution may give the victims’ families a sense of relief. For me, this blurs the line between justice and revenge, but it’s nonetheless a major argument of proponents.
Elder: Yes, Delozier seems to touch a chord. And you’re right: His case argues both sides, which makes his entry even more enigmatic.
Patterson: Tom, let me ask if you can think of any punishment that would suffice (i.e., satisfy demands for “justice”) and also reform defendants convicted of capital murder? I’m thinking specifically of Dominique Green’s maturation while living on death row, awaiting his execution. Could that type of isolation, instead of execution, be effective justice?
Cahill: Certainly, Dominique’s isolation enabled him (as he himself admitted) to become the person he always wanted to become, and all prisons enforce isolation in some form. But solitary confinement, which Tutu rightly designated as a form of torture, is totally unacceptable.
Most U.S. prisons have ended their educational programs, which means that at the end of his imprisonment, the convict is put back on the street no more capable of making an honest living than when first incarcerated. We must restore these programs—for the sake of the prisoners as well as the general safety of society. Prisons, as the early Quakers knew, should be places of repentance (thus, the word penitentiary), meditation and the resolution to improve.
More than this, society must find better ways of intervening positively in the lives of abused and lost children, so their inner selves can be transformed, so they don’t turn to crime. We must take care of all children as if they were our own. For they are.
Patterson: David, in your book, you quote a poem by Anne Carson: “Anger is a bitter lock, but you can turn it.” Whom does this quotation speak to the most? Your defendants, whose childhoods left them angry and led them to criminal lives; yourself, an attorney so frustrated with a shady legal system that you might give up in anger; or the victims’ family members, who would demand more violence in answer to the violence they’ve been forced to encounter?
Dow: I was talking entirely about myself. Sure, I’ve had clients who are angry, but they’re not, in fact, in a position to turn the lock. They’re going to be executed. On top of that—and this might surprise people—most of them aren’t angry. They’re resigned. The ones who murdered someone, which is most of them, have been remorseful for years by the time I meet them. I’m not saying they’ve accepted death—most of them want to have their death sentences set aside—but they aren’t angry.
I, on the other hand, am a different story. What angers me most are the judges—women and men who are supposed to be faithful to the rule of law; the contortions they go through precisely to justify ignoring legal principles is scandalous.
Patterson: Tell us about an egregious miscarriage of justice you’ve witnessed while defending your clients, something which demonstrates that the problem with the death penalty isn’t only that murdering murderers is ironic and hypocritical but rather (or also) that it’s simply not carried out in a fair and uniform fashion.
Dow: Let me start by saying that killing people is unjust, period. It’s unjust when a murderer murders, and it’s unjust when the state executes. Every society in the history of civilization has accepted the moral proposition that killing is wrong. Now, it’s true that different societies make different exceptions to this proposition. Some—pure pacifists—make no exceptions at all. I myself am not a pacifist, and so I accept that it’s sometimes permissible, even obligatory, to kill. But the important point: These are exceptions to the general rule, and there must, therefore, be a reasoned argument to support them. I’ve never heard a persuasive argument justifying capital punishment as an exception. It costs more to kill people than to keep them in prison, and it doesn’t make us any safer. So all executions are truly miscarriages of justice.
But that’s not what you’re asking, so I’ll give you another example. I’ve had any number of clients—Johnny Martinez and Willie Pondexter immediately come to mind—who weren’t the same people when they were executed as when they committed murder. It’s false to say murderers repent because they’re caught. What happens is that many murderers—and Martinez and Pondexter epitomize this—grow up on death row. They become literally different people. Because our legal system prevents us from marching people outside right after conviction and shooting them dead, we frequently find ourselves executing someone who isn’t the same person who committed murder. The more different the person is, the greater the injustice. Martinez and Pondexter were people I would have trusted to look after Lincoln. Some people think I’m crazy to say that, but they’re people who didn’t know Martinez or Pondexter.
Patterson: As we near the end of our interview, let’s talk about conclusions. First, for Thomas and David, have either of you ever witnessed an execution? If not, how have you managed to avoid it? And if yes, did it feel like “closure” or “justice”—or something else?
Dow: I have. It felt like what it is: simply dressing up an appalling, violent act in the garb of control and civility. Not closure or justice.
Cahill: I’ve never been present at an execution, except in imagination. My imagination is rich enough that I’m quite sure I hope never to be a witness, any more than I would wish to be present at any form of torture.
Patterson: As a reader, there’s always a big letdown when I finish a book that has moved me: I’m disappointed that it’s over; I’m also oddly afraid that I’ll never find another book that moves me or deserves to be read. After Truman Capote’s “In Cold Blood” established him as the forefather of narrative nonfiction, it also seemed to ruin his career. He never found another subject that lent itself to a book of equal stature. Closing out our conversation, could each of you explain how you handled the completion of your book, moved forward to another project and whether you think your work with the death penalty will cast a certain shadow over your future projects?
Cahill: I believe in life after death. Something I learned from Desmond Tutu is to have a list of those living and dead whom one should pray for each day. Dominique is on my list. But sometimes, certain as I am of where he is now, I ask him to pray with me.
Elder: I’ve actually already moved on and released “The Film That Changed My Life: 30 Directors on Their Epiphanies in the Dark.” It’s still an oral history, still about epiphanies—but obviously much more light-hearted. I had to write it while working on “Last Words of the Executed” because it was a break from such a dark subject. That being said, “Last Words” was the most challenging, engaging book I’ve done yet—and I may get pulled back into the capital punishment subject again.
Dow: I did an interview with my brother. He asked how long I’ll keep doing this work. I said either until I die or we get rid of the death penalty. I’m hoping for option B. Since he and I did that interview, I have become absolutely convinced that option B is the one that will unfold. I will keep doing the work because I believe that if you think something is wrong, you should struggle against it. But we have already seen plummeting rates for new death sentences, in and out of Texas, and I think the reason is that even death penalty supporters increasingly realize we do not need the death penalty, that it is an atavistic emblem of our past rather than a reflection of our current moral beliefs. I am looking forward to crossing capital punishment off the list of things our society needs to fix on its journey to being more just.
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