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The Right to Life

1.

The trial of Dobie Williams lasted one week, from selection of jury to guilty verdict to death sentence. Dobie was a Louisiana man, poor and black and with an IQ of sixty-five. He was convicted of the murder of a forty-three- year-old white woman who was stabbed to death in her bathroom. According to the prosecution, this lady called out helpfully, while being attacked, “A black man has killed me,” and when her husband rushed into the bathroom, she indicated, while dying, that the black man had gone out through a window so small and high up that the family had never bothered to put a lock on it. Betty Williams, the mother of the accused, commented, “That sounds like somebody in a murder mystery book.”

Dobie was on weekend leave from a detention center where he was serving a term for burglary. He seems to have been arrested because he was in the neighborhood. No motive was alleged for the crime, other than that Dobie had been drinking that evening. None of the blood of the dead woman was found on his person or his clothes. To explain this, the police suggested that Dobie had stripped naked to commit the murder. Because the victim’s clothes were pulled down—she was, after all, in the bathroom—it was insinuated that the accused had been attempting rape, though the victim had not in fact been raped and no such charge was brought. But the insinuation may have contributed to the jury’s speedy verdict.

Dobie was said to have confessed on tape, but the recording was missing by the time the case came to court, and the police officers who had overheard this “confession” gave conflicting evidence about it. Dobie was defended by an attorney later disbarred for unethical conduct, and as Sister Helen Prejean follows him on the long road to the execution chamber she explains how the failures and blunders at the original trial made it impossible for his later defenders to recover the ground lost.

Dobie went to death row in 1985 and was executed in 1999, by which time he had been given eleven separate execution dates, sometimes receiving a stay just hours before he was due to die. Is this torture? It is, by most people’s definition. In theory, the US Constitution does not permit it, but the Constitution is for human beings, and the system’s acknowledgment of Dobie’s humanity is scant. But he hangs on to a sense of his own dignity, refusing the grotesque ceremony of a last meal with prison staff: “When they finish eating they’re going to help kill me.” Sister Helen is horrified when she thinks of the cold-blooded ceremony to come:

Dobie is not in a hospital dying of some disease, with his life energies and faculties fading. He’s fully alive, has his full energy and emotions and consciousness. It makes his coming death impossible to comprehend.

In the room adjacent to the execution chamber, where he receives his final visits, there are murals showing Elijah ascending to heaven in his fiery chariot and Daniel in the lion’s den.

Her task in the last hour with the prisoner is to try to keep him emotionally intact, so that he doesn’t lose all dignity and is able to keep open the channels of grace which connect him to his God. Of course, if the prisoner remains emotionally contained, it makes the administration of the penalty easier. Faced with abject terror, staff might find it more difficult to deal with the task required of them. Faced with the protest and revolt of the powerless, they might feel their consciences touched and their notions of manhood afflicted (there are no women guards at executions). A prisoner reconciled to meeting his maker is easier for all concerned. “Jesus is close to us here,” she urges. “Jesus is helping you.” A thought arises, which seems almost too cruel to express: Sister Helen, in her heroic way, is helping to keep the machinery of death oiled.

In her book Dead Man Walking, published in 1993, Sister Helen explained how she first became involved with condemned prisoners, and she traces the cases of three men whom she accompanied, as their spiritual adviser, through their final days and hours. It was a best-selling and highly influential book, its arguments given wider currency by the film starring Susan Sarandon in the role of Sister Helen. This new book appears at a time when the death penalty system is in crisis. In 2000 James Liebman of Columbia University School of Law led a team which surveyed four and a half thousand death penalty cases and found “reversible error” in 68 percent of them. In his words—which seem the more true, five years on—the system is “collapsing under the weight of its own mistakes.”

So far, the crisis is not a crisis of conscience; among a public largely uninformed about how death penalty cases are decided, support for the punishment still stands high. But the public now cannot ignore the fact that there is a category of irreversible errors, which send innocent people to their deaths. The “innocence projects” run by law and journalism students have reexamined capital cases from the ground up; new DNA evidence has freed dozens of prisoners from death row. These instances are—or should be—profoundly shocking to a nation which has an often naive faith in its own standards of fair dealing. Sister Helen’s book is designed to increase public unease about unsafe verdicts. “Brace yourselves,” she says in her preface. “These stories are going to break your heart.”

This ambition to stir up emotion may not suit all readers, but Sister Helen also excels in pressing her case through analysis and argument. Here many of the points so well made in Dead Man Walking are reinforced, with fresh instances and telling detail. Public support for the penalty is based on the idea that the death penalty deters, though there is ample evidence that it does not. It is also based on a simple notion of answering harm with harm, balancing each killing with an equivalent slaughter. Yet only 2 percent of killers are actually killed in their turn; so why are they chosen? Overwhelmingly, those who get the death penalty are poor and black. African-Americans are 12 percent of the US population but account for 40 percent of those condemned to death. People of color are 50 percent of homicide victims, but 85 percent of the people on death row have killed white people.

The system values some lives more than others. And when we look at where the death penalty is most used, we find the southern states account for 80 percent of executions; they are prisoners of a history in which black people, especially, are to be feared, controlled, and repressed. Throughout the nation, it is the right wing and the godly who support the death penalty, taking their authority from the Constitution—which they read as a document frozen in time—and from the Bible: from all those familiar Old Testament texts, read as direct instructions from a wrathful God.

Dead Man Walking is not just the story of the men whom Sister Helen accompanied to execution, but also a story about her own radicalization. As a young nun, she thought her principal task was to save her own soul. Then in 1980,when, as she describes it, American “rage for incarceration” was at its height, she woke up to the notion of social justice. As a social worker in a poor black district of New Orleans, she began to understand why poor people remain poor, and to pick up on the fact that

whenever white people were murdered it was always front-page news, but when black people were killed the news evoked barely a five- or six-line article on the back pages.

The debate about capital punishment, she realized, is inseparable from the debate about race, and about poverty. You don’t find wealthy people on death row. In her neighborhood, they told her that “capital punishment means them without the capital get the punishment.”

She admits to a certain ignorance about how her own country worked. “When I first started visiting the condemned in 1982, I presumed the guilt of everyone on death row.” The death of an innocent person would be a fluke, she thought. In Dead Man Walking she examined cases where the executed men were guilty beyond doubt of the crimes for which they were killed by the state, but here she deals with two cases where she is sure the men on trial were innocent. They both believed that they had only to tell their story, and the truth would set them free. Her book is a detailed history of how wrong they were. When Sister Helen scrutinized the process of cases that interested her, and looked afresh at the initial trial process in each, she began to realize that “the courts are a system of gates that shut like one-way turnstiles. Once you come out, you can’t go back.”

It is vital to get effective legal representation at the earliest stages, and this is what poor people cannot get. The poor are defended by “overworked, underfunded and inept attorneys,” yet federal appeal courts routinely deny appeals based on “inef-fectiveness of counsel”—any lawyer not actually a corpse seems to be good enough. In the case of Dobie Williams, his counsel failed to conduct proper forensic tests, challenge the all-white jury, or properly frame pleas in mitigation of sentence. In addition, mistakes of fact made at the initial hearings can rarely be retrieved. The “raw stuff” of the crime—police reports, eyewitness statements, physical evidence—is dealt with at first hearing. Even if the appeal courts can be persuaded to re-examine it, there are the practical difficulties of disappeared witnesses, and missing and deteriorated forensic specimens. The prosecution has first sight of the evidence, and prosecutors routinely, she believes, withhold from the defense what is not helpful to their case, walking a fine line between carelessness and misconduct.

The defects of the system are well illustrated by the second case she follows, which is that of Joseph O’Dell, a white man from Virginia. He was convicted of the rape and murder of a white secretary, who was bludgeoned to death after leaving a nightclub in February 1985. As in the case of Dobie Williams, the prosecution overlooked obvious suspects and wove a “preposterous and convoluted” story to implicate the accused, who had been seen at the same nightclub on the evening in question. O’Dell’s landlady, who was also his girlfriend, had found some bloody clothes in a bag in her garage the next day, led there by an “intuition” after reading a report of the murder. The police found a blood type “similar” to that of the victim and arrested O’Dell. They found semen “consistent” with O’Dell’s on the victim’s body. The subsequent trial showed that if a prosecutor says “consistent with” long enough and hard enough, a jury will begin to hear “the same as.”

The first two public defenders assigned to O’Dell were unable to take the case. The third advised him to plead guilty; O’Dell believed he was collaborating with the prosecution. So he decided to defend himself. He was a veteran of the system—a child of rape, brought up in a violent family, he had a long criminal record. Yet he did feel, in this case, that if he could simply tell his story he would be believed. The prosecution had a different story and the will and means to make it stick. The physical evidence to link him to the crime was tenuous, and he had an alibi, though it was never properly investigated. But what sealed the verdict was a “confession” to a notorious jailhouse snitch called Steve Watson. Watson later admitted that he had been lying, in order to get a deal on his own sentence, but he would not come to court and admit this, for the very good reason that he was threatened with a perjury charge. The prosecution relied on this supposed confession and asked the jury for the death penalty, saying that, as O’Dell had always managed to get out of jail before, he would do so again, and that only a death sentence would stop him committing further crime. They made this plea in full knowledge that the alternative to a capital sentence was life in prison without parole; but the jury did not know this.

In the next twelve years O’Dell was unable to get his story told or his evidence reviewed, and the testimony of an eminent forensic scientist who offered to take the case pro bono was disallowed; the one expert witness he did manage to produce was taunted and reduced to tears by the prosecution. Sister Helen follows the intricate and lengthy process of failed appeals, and describes how O’Dell’s case became celebrated internationally. It was taken up by the Vatican and by the ordinary people of Italy, who made thousands of phone calls to the governor of Virginia and sent thousands of faxes to his office. The mayor of Palermo, a hero for his stand against the Mafia, made O’Dell an honorary citizen, and Mother Teresa called the governor to ask for clemency.

Sister Helen has complete faith that all this was helpful to O’Dell’s case. But how far it hardened attitudes, we can never know. You can almost feel for the governor; if you were satisfied—and presumably he was—that the best efforts of the judicial system had been bent on the case, how far would you be responsive to the coaxing of some nun from Calcutta, or what you might very well see as the manufactured outrage of a bunch of distant papists?

After his death, Sister Helen took O’Dell’s body to Italy for burial, and was granted an audience with John Paul II. This was the climax of her campaign within the Catholic Church, and she credits the O’Dell case with helping to change teaching which had stood since the days of Saint Thomas Aquinas. When she began campaigning, many individual priests and Catholic laypeople were abolitionists, but the hierarchy was not, and in Dead Man Walking she tells of her encounters with an obstructive prison chaplain who incarnated the conservative, misogynist status quo. After her letters, and her visit to the Vatican in the wake of the O’Dell case, Pope John Paul spoke out unequivocally against the death penalty, and the Catholic Catechism was altered. Unfortunately, it was altered by the removal of words that specifically endorsed capital punishment, rather than by the addition of words to exclude it. There is plenty here for theologians and Catholic lawyers to argue over, so the change may not be quite the lasting triumph that Sister Helen thought it.

Among the promoters of the death penalty, Sister Helen picks out Justice Antonin Scalia of the US Supreme Court for special odium. He is a prominent Catholic; how can he vote against the Church’s teaching? “My morality and religious beliefs have nothing to do with how I vote,” he says, and he aims to keep “personal predilections, biases, and moral and religious beliefs” out of the process of constitutional interpretation. Where does he leave them, the reader wonders, when he goes to work? Is there a sort of depository or a left-luggage office where you check in your personal experience and judgment, while you shrink yourself to a cog or spring in the great machinery of the law?

It is a sustaining myth of the law that it exists as an awesome neutral force, a force beyond interpretation, beyond ideology, beyond individual persons. Sister Helen shows, if demonstration is needed, how the practice and effect of law arises out of culture. But Scalia, with other conservative judges, is a believer in the Constitution as a fixed text embodying the intentions of its framers, rather than as a working document, evolving as it is read in the light of advances in human sensibility. He realizes that society’s standards change, but to feed that change through into penal policy is the duty, as he sees it, of the legislative arm of government, not of the judiciary.

The conservative position is that because the Constitution refers to and clearly envisages a death penalty, it is correct to maintain one for all time—though the Constitution also says that no one shall be deprived of his life without due process of law. The whole purpose of Sister Helen’s book is to show how that principle is violated frequently, violently, and publicly:

The crux of the constitutional debate is this: If, despite twenty-five years of attempted reform, the death penalty is still imposed randomly, the practice of the death penalty is unconstitutional as surely as if the Framers had explicitly forbidden its use.

2.

There are really two arguments going on—one about the Constitution and what it means, and another about God and what He means. Justice Scalia leans on Saint Paul’s Epistle to the Romans, Chapter 13: “the powers that be are ordained of God,” and so on. This text has been long used to sanction the actions of authoritarian government and to make rebellion illegitimate. (It can also be used to assert the divine right of kings, which should give any democrat cause to worry.) Sister Helen’s reading of the epistle is more fluid and subtle than Justice Scalia’s; she thinks Catholics ought to have a more sophisticated idea of how to interpret texts than fundamentalist Christians.

But why, the reader may ask, need we engage in this argument? In March 2005 the Colorado Supreme Court struck down the death sentence in the Robert Harlan case, where a juror took his Bible into the jury room and directed his colleagues’ attention to his favorite texts in Exodus, rather than to the evidence. A Bible in a jury room, the court said, is an “unauthorized extraneous text.” America is not a theocracy. But Sister Helen will sustain the argument with those who think it should be. If you want to sling texts at her she will sling some straight back. The humanist case against capital punishment was made in the eighteenth century, but she does not make it here. Secularist reasons for abolition are good enough for what Justice Scalia calls “post-Christian Europe,” but not for the godly US.

Justice Scalia’s phrase is intended to stir controversy, no doubt, but is not far off the truth. Where Britain is concerned—we should probably leave the north of Ireland out of the debate—it is now seen as almost offensive to assert that we are a Christian country. There may still be an established church, but its congregations are slender and diminishing, and liberal pieties insist we are a multicultural, multifaith society; the heir to the throne is said to have pondered whether the royal title “Defender of the Faith” could be altered to “Defender of Faith.” Sister Helen speaks of “the fierce ambivalence” that “almost everybody” experiences about the death penalty, but it is doubtful if you would find this ambivalence in the abolitionist countries of Europe; if it exists in individuals, it is more likely to be because of some personal ethical muddle than because the individual is searching for the answers in the Old or New Testaments.

There is a folk belief in the UK that if a referendum were held, capital punishment would be reinstated. But of course, this belief will never be tested. Capital punishment is off the agenda; no electable political party is offering to reinstate it, and in time there will be an electorate that cannot easily imagine it. Abolition is driven not simply by the fear of error or a sense of the inadequacy of the legal process, but by a knowledge of the penalty’s corrupting power; the question becomes not simply “Who can we justly execute?” but also “Who can we justly call on to be an executioner?” From time to time, in this post-Christian society, the liberal consensus may be nibbled around the edges, and the mass-market press may whip up regressive panics about outsiders and social misfits; but there is no call for the return of the hangman. Once state killing has gone, it’s gone. Not so in the US. The Supreme Court declared the death penalty unconstitutional in 1972, in the case of Furman v. Georgia; four years later, Gregg v. Georgia reinstated it. In 2000, as is well known, Governor George Ryan of Illinois placed a moratorium on the death penalty, and instituted a commission of inquiry into its workings. In 2003 he pardoned four men who were under sentence of death, and commuted to life imprisonment the sentences of 167 other offenders. But Governor Ryan did this as he left office; and the death penalty is still in force in Illinois.

How can a people’s mind be changed? In his book Ultimate Punishment, Scott Turow refers to “a struggle for the national soul.”1 In her acknowledgments, Sister Helen quotes the expressed hope of her publisher:

With the publication of Dead Man Walking, we opened the national conversation about the death penalty. With The Death of Innocents, we’re going to catalyze public discourse that will end the death penalty.

In other jurisdictions, the legislature has led public opinion, but in the US a shift in public opinion is crucial to the debate; in a system where so many officials are elected, they are bound to follow rather than lead. Sister Helen calls for the public to “assume ownership of our Constitution.” She frames her plea with an eye to the prejudices of those she needs to convince—not just the religious right with its old-style retributionists, but the suspicious and worried heartlands where liberal arguments are not going to appeal.

This lends her arguments a queasy tinge at times. She is keen to show that she is not soft on crime, and talks a great deal, and in heartfelt terms, about her work with victims’ groups. Above all she is anxious that the public be well informed about the alternative to capital punishment. Support for the death penalty falls away, she remarks, when the voter is offered the alternative of imprisonment without parole. She makes this point in both her books, but never explores the difficulties of running a penal system which confines prisoners who are without hope of release, and hence without incentive for cooperation. Lifelong confinement may be the only way to protect the community in certain cases, but humanity suggests that whole-life sentences should be rare. A system aiming only at containment, with no interest in rehabilitation, is a debased system, which will find itself in charge of the aged and the dying, presiding over their physical and no doubt spiritual deterioration. Such prisoners may present, to Sister Helen or any other religious person, the toughest challenge of all; surely they would become the most intractable of human beings, the hardest souls to save.

The reader feels quite sure that as an intelligent and compassionate woman, she has thought about these questions, but they are not worked through on the page. She is out to win the argument, and sometimes it seems she is not too scrupulous about how she does it; perhaps she would say that if lives are at stake, there cannot be any scruples. She is ready to appease the public by offering them, in the shape of whole-life imprisonment, a sense of security and a limited retribution. She reaches out to those she feels may be instinctively (or unreflectively) in favor of capital punishment, by playing on their fears of government incompetence: “Government bureaucrats can scarcely be trusted to get potholes in the streets filled, much less allowed to decide who should live and who should die.” This is a populist argument, a weapon apt to turn back on liberals who use it; when people are encouraged to distrust government, what is to stop them from taking the law into their own hands? She steers clear, too, of discussing how the murder rate, which naturally so frightens the public, could be brought down. The greatest single contribution Amer- icans could make to public safety would be to introduce effective and stringent gun control, but Sister Helen doesn’t address the issue, no doubt deeming it unwise to burst another bubble in the conservative version of the American dream.

Even if you cannot stand behind every argument the author makes, The Death of Innocents is a deeply convinced and deeply convincing book. Now we know what’s wrong: racial bias, bias against the poor, inept counsel, overzealous prosecutors trying to make a name, self-serving judges, missing witnesses, careless science, coerced confessions. Add in the use of jailhouse informants, the propensity of police officers to lie, and their evident inability to reason about the facts of a case, and you have a recipe for the continuing conviction and death of innocent people.

If you find Sister Helen’s direct and emotional appeal not to your liking, you can read Bill Kurtis’s The Death Penalty on Trial,2 an impressively brisk little book which takes the racial factor out of the argument by following the cases of two white men, one a respectable ex-army postal worker, one a misfit in his community, who found themselves condemned because of initial errors by the police—one an arrest in haste, the other an arrest which came out of the police’s frustration at being unable to produce a suspect. Neither of these men was executed, but they spent respectively twelve and four years on death row before they were freed.

After a spell on death row, you wonder, what does the rest of your life look like? If at last the court process has vindicated such men, they are no longer, in all ways, innocent, but morally injured and compromised, having suffered an ejection from society that is beyond recompense. And yet, we must see these men as lucky. The weight of evidence seems overwhelming that, as Sister Helen says, the system “virtually ensures that innocent people will be killed along with the guilty.” And for those who are not vindicated, it is surely little compensation, pace Justice Scalia (“How enviable a quiet death by lethal injection”), that he will be given the kind of euthanasia we give to our dogs when they are old and sick.

Where do we go from here? Possibly capital trials will become so expensive that they will break the budget in every state that wants to go in for them. A capital trial is—contrary to general belief—much more expensive than leaving someone to rot in jail for a lifetime. But the lengthy process of appeal and reappeal cannot be curtailed; defenders will fight on any grounds available to keep their clients alive, especially if they believe they may be able to beat the execution date by showing their client is innocent. Since the reinstatement of the death penalty in 1976, the courts have devoted themselves to a search for ways to limit the penalty and administer it equitably. One way to limit it is by excluding certain categories of offender. Dobie Williams would no longer be executed, since in 2002 the death penalty for convicts with learning difficulties was ended. A Supreme Court decision in March 2005 decreed that prisoners under eighteen would no longer be executed; Justice Anthony Kennedy, whose vote swung the 5–4 majority, mentioned the weight of international opinion, which had left the US the only country in the world officially to execute juveniles.

Another way to limit the penalty is to try to control what happens in court. There have been attempts by the Supreme Court to issue jury guidelines, to try to establish some objective criteria in working out who gets the death penalty. But justice makes two demands: one is for consistency, the other is that each case be dealt with on the basis of its pecu-liar facts. Checklists of aggravating circumstances and mitigating circumstances have proved hard to deploy because of the diverse nature of crimes and their victims, and because of the very slipperiness of the language in which we can discuss them. Recommendations that the death penalty be reserved for the “worst of the worst” murders invite us to ask, which murders are lesser? Which murders are ordinary?

As Scott Turow points out, it is these “worst” cases which are most emotive. It is in these cases that a community is most alarmed and the police are under great pressure to arrest someone, a someone whose guilt may almost be assumed in a huge communal sigh of relief. An atmosphere of terror is no climate in which to establish even the simplest facts. The increasing resources and precision of forensic science can help us toward simple facts, but it is important not to overstate what science can do. Science has to be paid for; there is no point in mandating early DNA testing unless the tests are properly funded and administered, and some states will not fund a post-conviction defense. There is a danger that the public will see for-ensic science as a pillow on which conscience can rest. But scientists disagree just as often as lawyers; expertise is variable; interpretation may be contentious; and in any event, science can only help a court when it is subject to the rules of evidence, and must depend on the understanding of judges and juries. Science may, in some cases, offer a final truth; but how do we get to it, and who will oversee the process?

As Sister Helen sees it, attempts to make the penalty more consistent have failed. Yet where defects are only procedural, they could be remedied; given political will and a bottomless public purse, possibly they could be fixed. If the bureaucrats were wise and the system fair—if the process met tightly defined legal criteria of objectivity—would it be all right to have a death penalty? Many would say yes. Sister Helen is clear in her view. “I don’t believe that the government should be put in charge of killing anybody, even those proven guilty of terrible crimes.” This is what the world would like to hear America say. You do not have to be a Christian, or have any faith at all, to support Sister Helen’s basic position: “Every human being is worth more than the worst act of his or her life.”

The death penalty is not wrong because it is inconsistently administered. If it were fairly administered, it would still be wrong. Finally, the issue is moral; a nation so God-besotted should be able to grasp that. When the government touches a corpse, it contaminates the private citizen. A modern nation that deals in state-sponsored death, becomes, in part, dead in itself; dead certainly, to the enlightened ideals from which America derives its existence as a nation.

Letters

Crime & Punishment November 17, 2005

  1. 1

    Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty (Farrar, Straus and Giroux, 2003), p. 24.

  2. 2

    The Death Penalty on Trial: Crisis in American Justice (Public Affairs, 2004).

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