As I write, the United States is preparing to execute Timothy McVeigh on May 16. If the death penalty is to exist at all, it's hard to imagine a more compelling candidate--a terrorist and mass murderer, apparently sane and unremorseful. Yet, remarkably, there are stirrings of debate about McVeigh's execution, led by the doubts expressed by some of the families of his Oklahoma City victims. When the hardest of hard cases gives so many people pause, it's clear that an opportunity is at hand for a public reappraisal of capital punishment in America.
In the last year or two, a remarkable shift has taken place. Minds have begun to change, or at least open. The Republican governor of Illinois, George Ryan, declared a moratorium on executions in his state. The New Hampshire legislature repealed the death penalty, only to have Governor Jeanne Shaheen, a Democrat, veto the bill. George Will and Pat Robertson have expressed reservations about the death penalty. Polls show a sizable drop in public support for capital punishment. Ryan's action, in particular, has had a ripple effect. Returning to the United States earlier this year after a stint as American ambassador to France, Felix Rohatyn wrote in The Washington Post that despite his service to the two New York governors who kept capital punishment at bay for 16 years, he never questioned the death penalty until "Ryan's moratorium, together with repeated reports about incompetent legal representation ... made me take this issue more seriously."
These developments suggest that despite the federal government's near-celebration of McVeigh's execution, something has changed the political calculus on what used to be an intractable issue. But what? That was one of the questions on my mind as I approached three recent books on executions in America.
Proximity to Death, by historian William S. McFeely, is the best of these. McFeely's book is a valuable corrective to the demonization that dominates most public discussion of crime, particularly the death penalty. His is a personal journey, starting with a phone call out of the blue from Stephen Bright, director of the Southern Center for Human Rights, a public-interest law office that represents death row inmates. Bright, we learn, wants McFeely to testify on the history of the Confederate flag. He does, and it sparks an interest in the people and the issues behind Bright's work. McFeely's short book, whose chapters mostly bear place names ("Morgan County Courthouse," "Phillips State Prison"), portrays lawyers with low salaries and high ideals, jurors who agonize over life-and-death decisions, and convicted murderers bent on self-improvement.
An emeritus professor of the humanities at the University of Georgia and a biographer of Frederick Douglass and Ulysses S. Grant, McFeely has the gift of bringing historical figures to life. That skill is evident in his rendering of the staff at 83 Poplar Street in Atlanta, the offices of the Southern Center for Human Rights. The character (in all senses of that word) of Steve Bright, the son of a Kentucky farmer, especially shines through in McFeely's book. To take one example: When a prosecutor agreed to a guilty plea from one of Bright's clients in exchange for a prison term, Bright accepted, and then learned that the county lawyers had conditioned the deal on Bright's waiver of any attorney's fees that might be assessed--a critical chunk of revenue for a firm like Bright's, where both he and the receptionist make the same salary: $23,000. When this outrageous prosecution maneuver became public, there was an outcry leading to an inquiry by the Georgia State Bar. But Bright stuck by the deal: "I knew ... that the offer was unconscionable and possibly illegal, but we had a young man's life at stake, so what were we going to do?"
Although I know Bright and many of his colleagues, I was not aware until I read Proximity to Death of the recruiting and mentoring role that he has played, a role that has given him an impact and an influence well beyond Georgia: Both Bryan Stevenson, the brilliant director of the Equal Justice Initiative of Alabama, and George Kendall, the indefatigable general of the NAACP Legal Defense Fund's efforts, cut their teeth in his office. In the kind of world I would like to live in, little boys and girls would have no higher aspiration in life than to grow up to be like Bright and his disciples. Their action figures would fly off the shelves at Toys "R" Us, and their photographs would beam at us from the covers of Wheaties boxes.
In addition to showing the humanity of capital defense lawyers, McFeely does the same for some of their clients. I was moved by his account of the relationship he developed with William Brooks, an African American from Columbus, Georgia, who was charged in the abduction, rape, and murder of a young white woman. Brooks was on death row but is now serving a life sentence, after Bright's firm won him a new trial. Brooks never went beyond junior high school, and only one teacher ever took an interest in him. Having spent his adolescence in prison and juvenile facilities for minor crimes, he earned a high-school-equivalency certificate. McFeely visits him in prison and brings him books, and they have lively discussions about Patrick O'Brian's nautical saga Master and Commander and Andrew Young's memoir of his civil rights activism, An Easy Burden. He doesn't romanticize people like Brooks, but neither does he permit them to pass into history as the sum of their worst acts.
McFeely finds an irresistible, Shakespearean element in Brooks's story. In 1912 a 12-year-old Columbus boy, Cleo Land, the son of a prominent white family, was accidentally shot and killed during horseplay with a black friend. The black boy was charged with murder, but when the jury returned a manslaughter verdict, an angry mob led by Land's family abducted the boy from the courthouse, took him to the outskirts of town (on a city streetcar filled with other passengers; all 19 of the lynch mob paid their fares), and riddled him with bullets. Remarkably, four of the killers, including Cleo Land's cousin, Brewster Land, were indicted and tried. A jury took 29 minutes to acquit them. Fast-forward to 1977, the first capital trial of William Brooks. The judge who sentenced him to die--and whose prejudicial instructions to the jury would result, years later, in a second trial for Brooks--was John L. Land, Brewster's son.
The case of William Brooks also figures in When the State Kills by Austin Sarat, professor of jurisprudence and political science at Amherst College. Recent advances in DNA technology have demonstrated that, though it may seem counterintuitive, eyewitness testimony is often unreliable. An unwitting illustration of this is the difference in these two authors' accounts of the Brooks trial. Both were in the courtroom (Sarat makes a cameo appearance in McFeely's book) and met many of the participants. Sarat hones in on the prosecutor's constant references to the victim's supposed virginity--the totemic invocation of the archetypal charge that spurred thousands of lynchings: the rape of a white woman by a black man.
That's missing from the McFeely book, but Sarat's account oddly fails to mention another archetype that figured in the case: the unreliability of identifications clouded by racial stereotyping. The victim's mother said she saw her daughter get into a car with a black man. But she first identified another black man as the killer, until he was able to establish an alibi. If he hadn't been able to do so, he might be one of today's DNA releases--assuming that he hadn't been executed first.
Through the case of William Brooks, Sarat tries to take us into the "ordinary world of capital punishment," and the way its "racialization" encourages "an acceptance, if not a warm embrace, of state violence as a necessary tool in the struggle between 'us' and 'them.'" For Sarat, the question is no less profound than whether "capital punishment is compatible with democratic values." He wants to "condemn state killing for what it does to, not for, America." Ending the death penalty, he believes, would help us "preserve what we value in our legal institutions" and "begin the work of healing the divisions in our culture."
Who Owns Death? by Robert Jay Lifton and Greg Mitchell (who previously collaborated on Hiroshima in America, a book about another kind of "legitimate" killing) is similar in scope and concerns to Sarat's book. Both works have a strong psychological strain and look at the impact the death penalty has on various parties involved--victims, offenders, lawyers, and juries. Like Sarat, Lifton (director of the Center on Violence and Human Survival at John Jay College in New York City) and Mitchell (features editor of Editor & Publisher) are concerned with what the death penalty does to us: "what ripples and reverberations ... executions send out to society as a whole." They find that many of those involved in executions are ambivalent about them and about their role in them. The authors believe that this uneasiness extends to the larger population, however ingrained support for capital punishment is believed to be.
In one chapter, Lifton and Mitchell take us through a gory parade of botched executions, including the gruesome 1997 death in Florida's electric chair of Pedro Medina, whose head burst into flames. This prompted soul-searching on the part of some political and editorial supporters of the death penalty. But not Attorney General Bob Butterworth (known to the nation as the chairman of Al Gore's presidential campaign in Florida), who warned: "People who wish to commit murder better not do it in Florida, because we may have a problem with the electric chair." This appalling callousness is all too typical of many current Democratic officeholders--such as New Hampshire's Governor Shaheen--who apparently drew the lesson from Michael Dukakis's failed 1988 presidential campaign that they should never be out-toughed on crime. And Butterworth has nothing on California Democrats such as Senator Barbara Boxer, who bragged that she voted 100 times in Congress for the death penalty, or Governor Gray Davis, who cited Singapore's draconian justice system with admiration: "You can't punish people enough as far as I'm concerned." (If the death penalty is to be abolished or sharply limited in the United States, it seems that leadership may have to come, Nixon-to-China style, from Republicans like George Ryan.)
Lifton and Mitchell also illustrate the arbitrariness of the death penalty by looking at the 1999 visit to St. Louis by Pope John Paul II. The pope met with Missouri's governor, the late Mel Carnahan, and urged him to grant clemency to Darrell Mease, who was facing an execution date for the 1988 murder of a 69-year-old farmer, his wife, and their 19-year-old grandson, whom he was convicted of ambushing in the Ozark woods and shooting in the face at point-blank range. Carnahan, who had approved 26 executions since taking office, had intervened previously in only one, involving a mentally retarded inmate. Yet he spared Mease's life, citing his "deep and abiding respect for the pontiff." Even Mease's lawyer, acknowledging a Republican politician's gripe that Mease had one of the weakest clemency claims, found it hard to justify: "I guess timing is everything, huh?"
That's for sure. All the arguments against the death penalty have been available for many years. Why are they registering now? Both When the State Kills and Who Owns Death? discuss recent changes in public sentiment, and end on a note of optimism that would have been hard to justify just a few years ago. Sarat concludes by urging that the anti-death-penalty movement move beyond the morally based abolitionist approach of the past to embrace arguments about equal protection, due process, and fairness. Indeed, these arguments have made headway in the last few years, but they are not new ones. In the 1980s, U.S. Supreme Court Justice Thurgood Marshall, among a number of others, urged just such a course. Lifton and Mitchell see abolition coming about through the increasing use of life-without-parole laws. But again, that option has been part of the debate for many years. I think, instead, that the change we are seeing is made up of several parts.
One part is science: DNA tests rendering undeniable proof, in case after case, of innocent people who came close to having their lives extinguished. (Testing may, however, be a mixed blessing; although people on death row are losers in a bizarre lottery in which race and class skew the outcome, most of them are not innocent.) Another part of the mix involves time and sheer numbers: On the death penalty and on some other criminal justice issues--like racial profiling and mandatory-minimum sentences--the United States came to a tipping point a year or two ago. How much more draconian could our justice system have become? Only a society with its values so out of whack can afford the luxury of a discussion about fairness.
But there are other elements, too, and these books largely miss them. One is organizing: the hard work of activists all across the country, like Mike Farrell of Death Penalty Focus, and Steve Hawkins of the National Coalition to Abolish the Death Penalty, who laid the groundwork over many years for the change that now seems sudden to many. Sarat, Lifton, and Mitchell, who treat such developments almost like acts of nature, are better at describing the changed cultural and political landscape on the death penalty than they are at explaining how it came about and what will take us to the point of abolition that they believe is on the horizon.
A final element in the mix is research, which gives activists and political leaders tools to employ. Governor Ryan was moved to declare his moratorium because a Northwestern University journalism professor put his students to work on a project investigating death row cases, and they found so many discrepancies that a large number of cases were reopened. Sam Millsap, the former district attorney for San Antonio (and someone I used to debate on the death penalty and other criminal justice issues in the mid-1980s, when I was director of the Texas Civil Liberties Union), recently called for a moratorium on executions. Why? Because he was influenced by the work of Columbia Law School professor James Liebman, who spent years on a study of the error rate in capital convictions.
The book about the death penalty that will affect the debate by the power of its story, the way Jonathan Kozol's Savage Inequalities did for public-school financing, or by the cogency of its argument, the way Derek Bok and William Bowen's Shape of the River did for affirmative action, has yet to be written. But each of these books makes an important contribution, nonetheless. What they demonstrate, powerfully, is that the fight against the death penalty is a long-haul effort. There are few victories in the short term, and it is not possible to do the work each day without a belief that your actions will have an effect over time. One lawyer at a death penalty resource center told Sarat that he views "every single act or omission that I am doing" as part of an effort to make "a record"--if not for the immediate case, then for the larger one.
You are making a record such that even after you ultimately fail to save your client's life you show that he was a worthy human being, that there was an explanation for what he did which the legal system could not, or would not hear... . There are lessons in the stories we tell, lessons about poverty, abuse, and injustice. Maybe they can't be heard just yet, but maybe they will be heard sometime.
In recent months, the lessons have begun to break through and the accumulated stories to be heard. It is possible, just possible, that the execution of Timothy McVeigh will in time be seen as one of the last acts of the killing state.