(Artvoice  4 May 2000)

We Don’t Have to Kill

by Charley H. Fisher III, Arthur O. Eve, Bruce Jackson, and Mark Mahoney

The governor of Illinois recently declared a moratorium on capital punishment in the state: so many death row residents had been proven innocent by DNA testing and by undergraduate students in criminology classes that the state’s death penalty procedure had become an absurdity. In the weeks that followed, cities across the country passed resolutions asking their state governments and the federal government to put all executions on hold until they can be reasonably confident that the men and women they want to kill really had done something bad. Some of those resolutions asked the higher levels of government to give serious thought to the question of whether or not capital punishment really served the public at all.

Charley H. Fisher III, Buffalo councilman-at-large, recently asked the Common Council to pass a death penalty moratorium resolution. On Tuesday, April 25, the Council invited members of the community to comment on Councilman Fisher’s resolution. The first three statements, offered by Arthur O. Eve, Bruce Jackson, and Mark J. Mahoney are printed below.

Late Tuesday afternoon, the Buffalo Common Council, voted in favor of Mr. Fisher’s resolution. Buffalo has requested Albany to make sure the death penalty is administered fairly before it sets about killing anybody.

The only members of the Common Council to oppose this request were Rosmary Lo Tempio, Richard Fontana, Mary Martino, Joseph Golembek Jr. and Marc Coppola.

The most bizarre statements in opposition to the resolution came from Golembek and Coppola. Golembek read from the Catholic Catechism and said it authorized capital punishment. Coppola, who only a month ago was assigned his uncle’s seat when Al Coppola went to the state senate, said he didn’t know enough about this issue to vote on it intelligently, so he was voting no. What’s bizarre is, the resolution wasn’t about whether or not New York should have capital punishment, only whether or not it should take the time to make sure it is fairly applied. Why Golembek thinks the Catholic Catechism is in opposition to that boggles the imagination.

Why Marc Coppola thinks a vote a vote against a consideration of fairness is neutral is even weirder. He obviously didn’t understand Fisher’s resolution, which might be okay for a new kid on the block who knew nothing about major public policy issues, but his long speech on his ignorance was time-consuming self-indulgence, and that is not okay. Nor is his apparent ignorance of the fact that he had the option of not voting at all on a question on which he admittedly had not enough information to vote intelligently. He could have kept his mouth shut and he could have abstained, but he talked and he voted for death. (If it’s true that he had no opinion on this issue, then his choice to join the punitive minority speaks ill of his independence. I suspect this will come back to haunt him should he decide to run for his uncle’s seat on his own.)


Mr. Fischer’s resolution: Moratorium on the Implementation of the Death Penalty

Whereas: In 1995, New York State reenacted the death penalty and currently has five inmates on death row; and

Whereas: Nationally, since the Supreme Court ruled that the death penalty was not “cruel and unusual punishment” in 1976, there have been 623 executions and, of those, 44% have been minorities; and

Whereas: Both the United State Supreme Court, in McKlesky v Kemp, and the United States General Accounting Office have tacitly acknowledged a racial bias in the implementation of death penalty statutes; and

Whereas: Since 1976, 80 inmates have walked away from death row because some evidence of their innocence was uncovered; and

Whereas:  Of those inmates who have been exonerated, the average time before evidence was revealed that led to the commutation was 7.5 years; and

Whereas: Since 1993, 8 death row inmates have been exonerated due to DNA evidence; and

Whereas: Earlier this year in the State of Illinois, after 13 death penalty inmates were exonerated, Governor George Ryan placed a moratorium on executions; and

Whereas: For those defendants facing the possibility of the death penalty and who do not have the resources to hire their own attorneys, public resources are often incapable of providing adequate representation, particularly since Congress, in 1996, cut federal funding to the nation’s 20 death penalty resource centers; and

Whereas:  The United States Supreme Court has drastically restricted the rights of death row prisoners to appeal their convictions and death sentences in federal courts.

Whereas: A bill has been introduced in the House of representatives (HR 388) which, if enacted, would prohibit a judge from issuing a warrant of execution and would forbid the execution of an individual sentenced to death; and

Whereas: The following local governments have gone on record calling for a moratorium on the implementation of the death penalty:  City of Baltimore, City of Carrboro Board of Aldermen, City of Chapel hill; City of Charlottesville, City of Durham, City of Mt. Rainier, City of New Haven Board of Aldermen, City of Philadelphia, City of Pittsburgh, City and County of San Francisco, City of Tacoma Park, Orange County.

 Now, Therefore, Be It Resolved:

 This Common Council memorializes Congress and the President of the United States to pass HR 4172 as quickly as possible.

Be It Further Resolved:

 This Common Council memorializes the Governor of New York State, and the state legislature to place a moratorium on all executions and the signing of death warrants until all of the issues surrounding the death penalty are fully resolved and the policy of State executions can be justified as a legal, humane, just and necessary form of punishment.

Be It Further Resolved:

Copies of this resolution shall be sent to the President of the United States, the Majority Leader of the United States Senate, the Speaker of the House of Representatives, the western New York delegation of Congressional representatives, the two Senators who represent New York State in the United States Senate, the Governor of New York State, the Speaker of the New York State Assembly, the Majority Leader of the New York State Senate and the western New York State delegation

Arthur O. Eve, Deputy Speaker, New York State Assembly:
There must be a moratorium on the use of the death penalty in New York State.  In a just and civilized society, it should never be possible for an innocent person to be executed by the state or any other governmental entity.

Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. The most recent findings on the relationship between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 1996, concluded:  “Research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment and such proof is unlikely to be forthcoming.  The evidence as a whole still gives no positive support to the deterrent hypothesis…often cited in support of the death penalty.”

A small number of countries account for the vast majority of capital executions.  During 1998, for example, Amnesty International received reports that just four countries - China, the Democratic Republic of Congo, Iran, and the United States - accounted for 86% of all capital executions worldwide.

In the United States, more than 500 people have been executed since the use of the death penalty was resumed in 1977.  As of April 1, 1999, over 3,500 prisoners in the United States were facing the death penalty, with a disproportion of such prisoners being from  minority groups.  We cannot ignore the relationship between race, poverty and the death penalty as human and constitutional rights issues.

Three hundred and fifty people convicted of capital crimes in the United States between 1900 and 1985 were later found innocent of the crimes charged, according to a 1987 study.  Some of these prisoners escaped execution by minutes, but 23 were actually executed.

The House Subcommittee on Civil and Constitutional Rights in reported in 1993 that 48 condemned men had been freed from death row since 1972. The report blamed inadequate legal safeguards to prevent wrongful executions and flaws in America’s criminal justice system for the capital conviction and execution of innocent persons.  The report concluded: “Judging by past experience, a substantial number of death row inmates are indeed innocent, and there is a high risk that some of them will be executed.”

The dangers of wrongfully executing innocent persons was recently made shockingly evident when students at Northwestern University in Chicago, Illinois facilitated the release of innocent prisoners who were facing the death penalty. The extreme and irreversible nature of the death penalty, as punishment, mandates its abolition.

The use of the death penalty against child offenders is particularly offensive in a just society.  Since 1990, only six countries are known to have executed prisoners who were under the age of 18 years at the time of the crime: Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the United States.  Such executions were carried out contrary to the United Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.

Personally, I have opposed, and voted against, the use of the death penalty in New York State since I began serving in the New York State Assembly.   Humanity, society, and justice would be better served if we adopted life imprisonment as an alternative to the death penalty.

Bruce Jackson, SUNY Distinguished Professor and Samuel Capen Professor of American Culture, University at Buffalo:

In practice, application of the death penalty is capricious at best. When Diane Christian and I did the research in Texas’s Ellis prison that resulted in our book and documentary film, Death Row, we could not help but be impressed at how little difference there was between the murders on death row and the murders serving time in the same prison. Talk to them,  look at their files: there was no consistent pattern of difference.

There were patterns on death row, however. Only one man there had killed a black person; all the other victims were white. Only two of the men on that death row had retained counsel at trial. Both were middle-class: one had put arsenic in his children’s Halloween candy, the other had helped his wife kill her father and mother; both did it for the insurance. All the other condemned men on death row in Texas had court-appointed lawyers, I remember the trial transcript of one of those men vividly: his entire trial—both the crime part and the penalty part–were finished in less than three days. There were huge inconsistencies in the evidence, not one of which was pursued by the defense attorney, who was from the same town as the slain policeman.

No, I’m not saying such defective counsel is always a factor. But it sometimes is, and it may frequently be. Ineffective counsel is a troublesome matter when we’re talking about drug possession or disorderly conduct cases; it’s far more than merely troublesome when we’re talking about cases that may lead to a killing by the state.

There’s a counter-argument to all of that: give everyone good counsel, execute people who kill black people as frequently as we execute white people, and execute all those other murderers who got prison sentences rather than a death sentence. That is, make application of the death penalty consistent and fair by executing thousands and thousands of people.

I live in the real world and I’ve studied criminal justice matters for nearly forty years and I don’t believe for a moment that it is remotely possible to make application of the death penalty consistent and fair.

But there are better reasons than that for abolishing it.

Death penalty advocates insist that it deters others from committing horrible crimes. But there has never been a shred of evidence that the death penalty is any more deterrent than a life sentence. Contiguous states with similar economies, one with capital punishment, one without: no difference in crime or murder rates. A state that adds or drops the death penalty: no difference in crime or murder rates. The likelihood of punishment is an effective deterrent, not the character of it.

Some death penalty advocates say it gives us a chance to get even, to get revenge. To that I can only say that I do not think that homicidal revenge is a legitimate function of moral government.

And some of them argue that the death penalty provides a feeling of cloture, an ending, for the small percentage of cases that actually get to execution. That’s the argument offered by Fordham psychologist Ernest Van Den Haag and Georgetown philosopher Walter Berns. Both say that the feeling of cloture is so important we can afford to execute an innocent person now and then. An execution proves the system works, they say, and the benefits we get from executing the guilty far outweigh the costs we incur by executing the innocent.

And that is where, I think, any rational and moral person must break off the relationship. Too many cases have been shown to have been flawed, erroneous, malicious, clumsy. You are perhaps aware of all the men released from death row in Illinois in the past three years because new evidence proved their innocence–and in at least two of those cases the evidence was uncovered by undergraduate students, not by the criminal justice system.

If a wrongful conviction and sentence happen in a robbery case it's awful but some reparations are possible. There are no reparations possible when the person has been the victim of state-sanctioned killing. The death penalty is forever.

Why should the state take on the risk of killing innocent men and women when all responsible studies show that the punishment is capricious and redundant? Prison serves all the legitimate functions equally well, and it avoids the two moral abominations.

I’ve just mentioned one–killing an innocent person. That, after all, is why they’ve been put on death row; for the state to do it calmly and deliberately is unspeakable.

The second is the act of killing itself. We condemn murderers to death or long prison sentences because we believe taking of a life is one of the most heinous acts thinkable. When we execute someone, every single person involved in that process has blood on his or her hands. I’m not thinking here of what that criminal did or even what that criminal deserves; I’m thinking about the moral cost to US that accrues when we collaborate in putting someone to death.

What you can do here in the Common Council is only symbolic. A city government isn’t involved in felony trials or executions so a city resolution doesn’t directly affect the process. But it matters. This is the time of Passover and Easter; Miami and Havana are going mad over a six-year-old boy.  Symbols matter. Your votes on this matter.

Some years ago New York State Senator James H. Donovan, an ardent death penalty proponent, said, “Where would Christianity be if Jesus got eight to fifteen years, with time off for good behavior?” Governor Hugh Carey replied, “If Senator Donovan can get resurrection into the death penalty, I might be willing to give it a second look.”

As it turned out, it was Senator Donovan who gave the subject a second look. Not long after that exchange he learned he had terminal cancer, and soon after that he changed his vote on capital punishment. Once the idea of his own death became real, the idea of putting someone else to death became untenable.

And so it remains: no one has gotten resurrection into the death penalty and for that reason, if no other, it remains as morally and civilly vile as ever.

Mark J. Mahoney, attorney

 A moratorium, then what?

The arguments for a moratorium on the use of the death penalty are strong. There is no active justification for the execution of innocent persons, although it is perfectly constitutional (1), and we can be certain that innocent persons have been and will be executed.  In New York State, which at one time led the nation in executions, we have an unhappy history of leadership in the prosecution and conviction of innocent persons for capital murder.(2)

Even now there is unfairness built into the process. A person committing a certain homicide in a rural county is twice as likely to have the death penalty sought as one who commits the same offense in New York City.  The Supreme Court has concluded that race is an ineradicable factor in the imposition of death, and therefore no impediment.(3)   In our single capital murder trial in Buffalo since 1995 a young black man was tried before a jury drawn from a group which under represented the blacks in our community by half.  We should stop executions because we lack the power to insure that executions are fairly imposed..

But the arguments for only a moratorium are also weak.  My concern id for what lies at the END of the moratorium.  We will never be able to eliminate disparity in the selection of targets for the death penalty.  Race, class, region, and differences of all sorts have always dictated the selection of targets of collective violence, throughout human history. Among the many myths which surround the death penalty, like the myth of deterrence and the myth that it benefits the families of victims,  we may simply create a new and more dangerous myth, a myth of “correctness” in the process by which guilt is determined and death imposed.

But there is a perfectly true and good reason for a moratorium on the death penalty.  To understand what it means to give up the use of death as a punishment for crimes, we have to first understand why so many of us have a stake in preserving death as punishment for crime.

In fact there is nothing new about our desire to select individuals for execution. The collective selection of a person to be executed for the larger good has been seen as the founding moment of human religion, culture and institutions.  Collectively we have rivalry for what the other has, and fear of actions that will take it away.  We resolve these fears in actions of collective violence against a single victim or group of victims, “scapegoats,” which causes our fears to subside, even though the danger and risk still remain.

The South African theologian Robert Hamerton-Kelly describes this in narrative form:

 Once upon a time there was a group of hominids that found itself unable to do anything in concert because of rivalry among them.  Each one [was] inwardly compelled to imitate some other.  As the imitation became more successful he found himself arrival of his model, and the more like the model he became the more violent became the rivalry.  Cooperation was impossible until one day, [the momentous day human culture began, two] of them discovered that it was possible to agree on one thing, to agree to kill someone else.  This was such a compelling possibility that the whole group imitated them, and so the first moment of human society happened as the fellowship of the lynch mob.(4)

In every culture, and in every generation of humanity we have seen the scapegoat mechanism at work.  Ritual human sacrifices of primitive societies, the killing of the pharmakos in Ancient Greece, the killing of Jews by Christians in the Middle ages who accused the Jews of poisoning the wells (causing deaths that were really caused by the plague), the burning and hanging and torturing of witches and heretics, lynchings in the United States in the past two centuries, and the execution of a selected number of murderers: all these examples of collective violence serve the same underlying function of attempting to unify the community against an individual (or group) which has been made the object of the community’s fear of crisis and violence within. The myth is that this human sacrifice will cure the crisis, stop the violence we fear so much.

These acts of collective violence are ritualized and justified in myth, culture and law to reinforce their power to alleviate fear in the community, and unify the community, even if they are wholly without their explicitly intended effect.  The belief in witches was fervent, and the persecution of witches was approved by sober community leaders. We find it hard today to take seriously their beliefs.  But there was truly more evidence for the existence of witchcraft in the 17th century than there is evidence today for the notion that te death penalty deters crime. People actually confessed to being witches.

If we find laughable the beliefs of earlier generations which were used to excuse the sacrifice of human beings, how laughable in the future will appear our efforts to rationalize the need to kill a few among thousands of murderers?  The moratorium movement has strength because the possibility of innocence of convicted murderers undercuts one of the myths supporting the death penalty, that the killer always “deserves” death.

The challenge to human society is to lose its dependence on scapegoating, on the “fellowship of the lynch mob.”  The message of the later Hebrew prophets, and Jesus Himself, was that retribution, blood for blood, was to be replaced by a new order, in which we love our enemies, and where how we treat the “least ones” in our community is the true measure of our humanity.  The revelation contained in the crucifixion of the most perfectly innocent of victim of capital punishment was the revelation that our justifications for violence are just mythical camouflage for collective violence, and the victim is only a scapegoat.  Even for the correctly convicted killer, his or her execution–out of all potential lynchees– is wholly symbolic, as all ritual sacrifice is.  Our redemption, indeed our survival, as a species is dependent upon discovering a new principle to replace collective violence as the unifying mechanism in society.

And so, just after we celebrate the triumph of the most famously innocent scapegoat , in this millennial year, more or less, of His birth, we have a wonderful opportunity to pause, and reflect on why we find it so hard to give up our stake in  that process of collectively killing human beings which is so clearly rejected in our religious teachings.   Why do so many of those who profess to be civilized, and even those who profess follow the teachings of Christ, feel they have such a stake in preservation of this ritual of human sacrifice?  To pause to consider that is a good reason enough for a moratorium.

Practically every other nation with whom we identify in terms of values, culture, and beliefs has rejected this form of collective killing, and we have to understand why we find that so hard to do ourselves.  The urge to punish, in this respect especially, has been reduced to a U.S. phenomenon.  I know it is not because we are bad people.

In her poem entitled “The Chicago Defender sends a man to Little Rock,” Gwendolyn Brooks recounts her thoughts the thoughts of a reporter for the famous African-American newspaper on being sent there to expose the presumed ugliness of the White community which violently resisted the desegregation of the schools in 1957.   The “mob” behind the violence, however, was made up of normal and good people, no more foolish than those in generations past who have been active or complicit in sacrifices, burnings, lynchings of our fellow human beings.

 I scratch my head, massage the hate-I-had.  I blink across my prim and pencilled pad.  The saga I was sent for is not down.  Because there is a puzzle in this town.  The biggest News I do not dare  Telegraph to the Editor’s chair:  “They are like people everywhere.”

In the capacity, in the need, of normal people for violence, in their need for scapegoats, she saw reflected the lynch mobs of the past. And she saw the connection between the victims of today, and that perfect victim past.

 I saw a bleeding brownish boy . . .  The lariat lynch-wish I deplored.  The loveliest lynchee was our Lord.

1.  Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1992)

2. New York appears to lead the nation in innocent persons executed this century.  There is compelling evidence that, in this century,  New York executed eight innocent people, “by far the largest number of wrongful state executions in the nation.” Lumer & Tenney, "The Death Penalty in New York: An Historicall Perspective," 4 J. Law & Policy 81, 98 (1995). “[R]esearchers [have] identif[ied] a total of twenty-nine New York [capital] cases in which miscarriages of justice [appear to have] occurred.” Acker, James R., "New York's Proposed Death Penalty Legislation: Constitutional and Policy Perspectives,", 54 Alb. L. Rev. 515 at 603 (1990)

3. McKlesky v. Kemp, 481 U.S. 279, 286 (1987); see David C. Baldus, George Woodworth and Charles Pulaski, "Reflections on the Inevitability of Racial Discrimination in Capital Sentencing and the Impossibility of its Prevention, Detection, and Correction," 51 Wash. & Lee L. Rev 359, 365, n.9 [1994]; United States General Accounting Office, Death Penalty Sentencing: Research Indicates PAttern of Racial Disparities, reprinted in 136 Cong. Rec.  S-6889-90 (daily ed.  May 24, 1990)

4.As described in Syracuse University Theology Professor, James G. Williams’ book, The Bible, Violence, and the Sacred (Trinity Press, 1991), p. 7.

Photograph: Death Row, Texas, 1979, from Death Row, Bruce Jackson and Diane Christian

copyright 2000 Bruce Jackson

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