Rev. Kathleen McTigue and John Watson
May 6, 2001

Reading

From an interview with Bo Lozoff, Buddhist prison activist and author of We're All Doing Time Taken from the Utne Reader, Sept.-Oct. '95

[Most of us don't remember that] the St. Paul who wrote most of the books of the New Testament was also once Saul of Tarsus, who tortured and killed innocent [people]...who professed to be Christian. Valmiki, the Hindu saint...was a highway robber, drunkard and killer. And Milarepa, one of the greatest Tibetan gurus...killed 37 people before his spiritual transformation... The point is that we have inherited stories about the spiritual transformation of thieves, pimps, drunkards, whores and killers. Do we believe them or not? Did such people become saints and sages or not? Was it only possible in ancient times?

...There is a tendency [within human nature] to want to objectify, ...hate and blame problems on [some separate] group of people. Then there is a tendency to resist this kind of prejudice. [So we've had] the civil rights movement, the anti-war movement, the women's movement, the gay and lesbian movement. The struggle is always the same; only the characters change. And the argument, however secularized, has always been the same as well: We should regard all people as equal in the eyes of God.

In the 80s and 90s, however, Americans came up with the perfect target: criminals. Nobody's going to take them away from us. Nobody's going to crumble this Berlin Wall. Nobody is going to say that we have to love them. In fact, it's not even forbidden to say we want to kill them....We assign them deficient qualities like evil, we use words like animal, scumbag, and lowlife to describe them...We blame all our fears on them...We want them put to death....[We are living in a world filled with the fantasy that] 'bad' people and 'good' people are clearly identifiable; a world where bad people, once they're branded, are hurt and punished, and where their joy and hope are stolen from them as a means of 'rehabilitation'. This is an absurd, brutal fantasy world...

[The truth is that] people who have raped, robbed, and killed can still make the classic choices of turning their lives toward the good. They can't bring back their victims, but neither could St. Paul or Valmiki or Milarepa — and they still became saints....No one is ever counted out. And when we see the magic happen, when we see how amazing is 'amazing grace', we know that we can do this, too. We can become wise and free and loving, even as the 'least of these': our brothers and sisters behind bars.

An Eye for An Eye: Reflections on the Death Penalty

Kathleen McTigue

Ten days from today, on Wednesday May 16, Timothy McVeigh will be executed for the crime of blowing up the Federal Building in Oklahoma City six years ago and killing 168 people in the process. Timothy McVeigh is a kind of 'poster child' for those who believe in the death penalty. He committed a crime that was almost unimaginable in the lives it took and the grief and suffering it caused. He admitted to the bombing, so there is no possibility at all of mistaken identity. He has seemed breathtakingly callous, almost inhuman, in the years since the bombing: he's spoken no words of remorse, and calls the victims 'collateral damage'. And he has not chosen to fight his death sentence, so allowed the opportunity for a clemency request to pass in silence.

It would be hard to create a better candidate for the death penalty, with the possible exception of Hannibal the Cannibal. McVeigh's face, whenever it's seen in photographs, does not invite pity or compassion, and it seems beyond comprehension that he could feel no guilt or sorrow about the children and babies, men and women who died because of him. And yet I have come to believe that there is no human being — no human being, not even Timothy McVeigh — against whom the death penalty can be justified.

In the entire course of our history with capital punishment, there has never been clear evidence that it does us any good in terms of crime prevention. Those who support the death penalty argue that it functions as a deterrent, but the claim is dubious at best. A recent New York Times study showed that homicide rates in death penalty states average 48% to 101% higher than states without capital punishment. The death penalty was clearly no deterrent to Timothy McVeigh as he plotted out his course of action. And in the moments of passion, insanity or drug and alcohol addledness in which most capital crimes are committed, no deterrent is really relevant.

So one could advocate, as many do, that the death penalty be abandoned simply on the grounds that it doesn't work in crime prevention. Much more compelling for some of us is the haunting question of whether or not some unknown numbers among those executed by our government may actually be innocent. Nation-wide, eighty-five death row inmates have been released since the Supreme Court reinstated the death penalty in 1977. In this century, twenty-three people have been proven innocent after their executions — and the number is likely higher. In January of 2000 the governor of Illinois declared a moratorium on the death penalty in that state because thirteen Illinois death row inmates have been proven innocent of the crimes for which they were to be killed.

There are also the painful statistics on how unfairly the death penalty is sought and applied. 90 percent of the people charged with capital crimes are indigent, and cannot afford to hire experienced criminal defense attorneys. 90% of those executed in this country were convicted of killing white people, although black people make up more than half of murder victims. So a compelling argument can certainly be made that we're in desperate need of a moratorium on the death penalty. There's legislation pending at our state capitol right now demanding such a moratorium for Connecticut.

But it seems to me that there are other dimensions of the death penalty that ought to haunt us. Even if we could prove that the fear of execution worked as a deterrent; even if every single person on death row were guilty beyond the shadow of a doubt; even if we someday succeeded in purging our legal system of its racial and class biases (which seems slightly less likely than finding a snowball in hell) — even so, even then, should we have a death penalty? Even in that idealized and perfected world, we would surely have to ask ourselves a few questions. How much more urgent it is that we ask those questions of ourselves right now, in the deeply flawed world that is our real life.

What does it mean to call ourselves 'the leader of the free world', and yet be almost the only industrialized country in the world with the death penalty (the other is Japan)? Where in our psyches do we put the facts of racial and class bias in how this punishment is used? What does it do to us to live in a culture that kills as punishment? U.S. Congressman Lee H. Hamilton (D-Ind.) writes, "The death penalty demeans our society and violates a basic tenet of most Americans' religious heritage: Thou shalt not kill. The death sentence endorses violence, and violence begets violence."

Unitarian Universalists don't think about the Ten Commandments very often. But we do have our own set of guidelines for how to live in the world, and it's hard to reconcile the death penalty with a belief in the worth and dignity of every human being. When the Unitarians and Universalists merged in 1961, a resolution against the death penalty was one of the first actions taken by the new denomination, and four subsequent resolutions have been passed in the years since, declaring our opposition. And yet the death penalty is not a front-burner issue for most of us.

Like so many others in this country, we often allow ourselves to think of those in prison as being of a significantly different tribe from the broad human one to which we belong. Words are used, like 'convict', 'criminal', 'inmate' and 'felon', and the pictures these words evoke in our minds are not generally of people with whom we feel an instant kinship. It is easy to separate ourselves emotionally and intellectually from those who are physically separated from us by the prison walls, and it is this internal separation, I think, that allows us to tolerate the death penalty in our state and in our country.

I use the word 'tolerate' carefully, because I believe that there are not too many of us who actively and with conviction support the death penalty. But how many of us who do not support it can call ourselves activists on this issue? I must admit that I cannot. I think that for all of my adult life I would have said, if asked, that I believe the death penalty is immoral. But in all my years of activism I have never joined a vigil or demonstration against it, nor written a letter to demand that it be abolished. And I have to wonder, Why is that? Why have I been so willing to tolerate the death penalty?

The only answer I really have is that I too have been able to put the issue out of my mind because I have been able to put the people out of my mind who face this penalty. I don't feel an automatic kinship with them, in the few instances in which I know anything about them. A few of them, like Timothy McVeigh, evoke such anguish and outrage for what they've done that a little whisper may arise in the back of the mind — Well, doesn't he really deserve to die for that? And there, I think, is the crux of the matter for me. In choosing to have the death penalty as a punishment in this country, we are willing to say, in effect, that the ethos of 'an eye for an eye' is where we want to be. We are willing to say that someone deserves to die for what they have done. We are willing to say that someone among us is beyond all measures of redemption, of change, of transformation. We are willing to say that, through the suitably long and impersonal arm of our government, we will kill. That we will kill. That we will kill a human being.

And what this is about, it seems clear to me, is vengeance. What else could it be? Clearly it isn't about penitence, out of which the name penitentiary arose, nor is it about correction, out of which our almost Orwellian term department of corrections is drawn. It certainly isn't about making amends or working toward restitution or seeking forgiveness or choosing mercy, or any of the other high moral ground toward which we aspire in other areas of our lives. The death penalty is about vengeance. Vengeance feels like a good thing in the context of the passions aroused when we are desperately wronged. But there's a reason why we don't put the victims of a crime, or their survivors, on the jury. There's a reason why we've outlawed posses and other forms of vigilante justice. The reason is that on the whole, we don't think our society is served by the rules of vengeance.

In a letter written five years ago, retired Supreme Court Justice William Brennan wrote, "Even the most vile murderer does not release the state from its obligation to respect dignity, for the state does not honor the victim by emulating his murderer. Capital punishment's fatal flaw is that it treats people as objects to be toyed with and discarded."

In ten more days Timothy McVeigh will be killed by our government. His execution has expanded far beyond the quiet rooms in which such punishment is usually delivered. It will be broadcast to over two hundred survivors of the bombing and relatives of those who died. It will be accompanied by thousands of people in the streets outside the Terre Haute prison, many of them cheering about the death and wearing T-shirts bragging about their presence for it. A company called Entertainment Network will be suing up to the last minute for the right to broadcast McVeigh's death over the internet, for the interest and titillation of all who wish to tune in. Radio talk-show personalities are actively, cheerfully staging a count-down.

But some of us will refuse to participate. Bud Welch, whose 23-year-old daughter Julie was killed in McVeigh's bombing, has been speaking out against the death penalty for months. "The day that we execute Timothy McVeigh...will be a day of vengeance and rage", he said. "Vengeance and rage will destroy us." Bud Welch, as a suffering parent, has far more moral clout than I in speaking out to say that even a Timothy McVeigh should not be executed. I know very clearly that it's Bud Welch's side of the line on which I want to stand on this issue. So on the day before the execution I'll join the vigil against it. I know that in being there, in Hartford or New Haven, we won't stop this particular killing. But we will at least be able to say aloud, 'You don't do this in my name.' Amen.

An Eye for An Eye: Reflections on the Death Penalty

John Watson

Let me start with an excerpt from a speech given late last year by judge Joseph Shortall, who used to be the chief public defender for the state of Connecticut. But before i read this, let me warn you: Joe is from Irish-American catholic roots, and there is talk of god to follow. Some of us aren't comfortable with the g word; I am not a theist myself. Please loosen up, try to get past the god language to what is behind it, or within it. Whether or not you believe in god, I think Joe says something really important here.

Speaking to a room full of public defenders, staff, friends, family, and other supporters about why we do this work, Joe said:

"I suggest to you that, beyond the professional challenge and the genuine fun it can be just to stick your finger in the eye of the system (and I know that is reason enough for a lot of you), there are deeper reasons. "I suggest that the work you do and I did is based on a respect for the men and women we have represented that goes deeper than what they have done and what they have been.

"a recognition of ourselves in them. An appreciation of our common humanity with them. An affirmation that 'there but for the grace of god go i. An affirmation that they, like we, are children of god. I believe there is in what you do and in what i have done — in our defense of these children of god, who have behaved in such ungodlike ways — a small piece of god's work."

My day job is being a public defender. I have been doing this for twenty-one years. I have handled thousands of cases, and now I am assigned to the most serious cases in Hartford. This includes some death penalty cases, tho' that is not all I do — not even a very large percentage. At any given time, I may have one or two death penalty cases out of a total (just now) of thirty plus cases.

The prosecution has yet to "go all the way" with one of my cases — that is, they have not yet tried one of my capital clients to a final verdict seeking execution. My first capital case settled for a sentence of life without the possibility of release plus fifty years after we spent seven and a half months picking jurors and doing pretrial motions. We would have settled on day one for any sentence except death. My co-counsel thinks the case may have settled because springtime arrived and the prosecutor in charge of the case is an avid golfer. He may be right, i don't know.

Let me give you some concepts and vocabulary about the law of the death penalty as it now exists in Connecticut. The death penalty applies in Connecticut only to a few offenses, not to all murders. Specifically, there are nine offenses for which you — well, not you, of course, you are almost all white, reasonably well-to-do and well educated — for which my clients may be charged with capital felony. If they are convicted of capital felony, there must then be a second proceeding, called the penalty phase, after which the jury or a three-judge panel decides whether to impose death (by lethal injection) or life without the possibility of release. That phrase means what it says; the person so sentenced must die in jail unless the conviction is overturned or the law changes at some subsequent time.

This cumbersome, two-step death penalty process exists in various forms in every state in the us. It was developed in the early '70's after the us supreme court decided that the death penalty as it then existed was unconstitutional because it was imposed so arbitrarily. One of the justices compared its imposition to the processes by which those struck by lightning are chosen — i.e. by happenstance, without rational guidelines at all.

In the penalty hearing, the prosecutor has the burden to prove one or more of seven "aggravating factors" in the law. Some are quite specific, such as use of an assault weapon, and some rather vague and subjective, such as committing the offense in an especially heinous, cruel or depraved manner. If any aggravating factors exist, the defendant may present evidence of mitigating factors — anything at all which may call for a sentence other than death, such as impaired mental capacity.

The three judge panel or the jury decides whether the aggravating factors outweigh the mitigating factors. If so, the court must impose the death sentence. If not, the sentence is life without the possibility of release. No other sentence alternatives exist for capital felony.

What is wrong with the death penalty, anyway? A number of things:

1.It falls pretty much exclusively on the poor and the non-white. Everyone on death row now in enlightened Connecticut was represented by the public defender or by private attorneys paid by the public defender system when we have a conflict. Three prominent Connecticut defense attorneys were featured in today's new haven register. They are refusing to do any more such special public defender work because the compensation rates are so low they are a disincentive to do adequate preparation..

2. The public defender who represents these people in Connecticut (in other states, it's just some more or less randomly chosen private lawyer, possibly without experience or competence) — but let's stick with here. The public defender who represents these people is me and others like me: some better, some not so good. And i am tired, burnt out, fallible, not feeling well that day, cranky, have a bad relationship with the judge or the prosecutor, etc., Etc., Ad nasaeum. No one's life should depend on me.

3. Sometimes, innocent people get convicted and even executed. Estimates vary, but no serious dispute exists that some percentage of the people on death row, or in cemeteries thereafter, are innocent — not in some technical, legal sense: they didn't do it!

4.It is more or less randomly distributed among the defendants who are eligible for it (except for the economic and racial threshold factors i already mentioned.) One arbitrary factor that matters enormously, both between states and within each state (including Connecticut) is where the crime is committed. I represented one capital defendant who would not even have been charged with capital felony anywhere in Connecticut except Hartford (and possibly Waterbury). Those two counties account for at least three quarters of the death penalty prosecutions and nearly all of the inmates on death row in Connecticut. 3. 5. That last point brings up the fifth and final problem with the death penalty i will mention. Prosecutors get to decide — independent of any court (or other) review — whether or not to charge the death penalty and whether then to pursue it vigorously or plea bargain it. The consequence of this fact is to increase enormously the capricious impact of the penalty, both because of honest variations from prosecutor to prosecutor in the ways they view crimes and the penalty and because some abuse their power. In effect, it makes the death penalty just a tool or bargaining chip in the hands of prosecutors. They can, and do, compel defendants to choose between the risk of death and sometimes sincere an possibly true protestations of innocence.

Those are a few of the biggest things wrong with the death penalty. I do not believe that these things can never be fixed.

Even if they could be fixed, however, I still believe the death penalty is wrong and should — must — be abolished. Why? Because the following people — real people — are human beings who have been charged with capital felony in Hartford within the last few years.

Nicole was a twenty-four year old abused woman with a horrible childhood, intellectual deficits and substance abuse problems. Through neglect, she caused — or possibly just failed to prevent — the death of her newborn. I am not interested here in portraying most of my clients as innocents, nor making their actions seem less than horrible. Some few of my clients are really bad people, and many of their actions are horrible. Nicole's actions were at best dimwitted and immoral, though there was substantial mitigation. But Nicole has a sweet temper, is a devoted mother to there older son, was pathetically grateful to me and my social worker for simply treating her decently. She has already grown tremendously as a person through treatment, training and education.

Carl is twenty. He and another boy are accused of kidnapping a young man from a strip bar parking lot, driving him to an ATM to withdraw money on his bank card, then driving him to a highway onramp, where one of them (each points at the other) allegedly shot the man in cold blood and left him dead. As a aside on the irrationality of the death penalty, these boys were within nine months of the same age, but the other boy was less than 18, while Carl was a few months past that birthday. The younger boy cannot legally be executed; Carl may be. Carl can be very scary. Sometimes he seems blank and uncomprehending of the evil of what he and the other guy allegedly did. Yet he is also sometimes funny and intelligent, open to new thoughts and insights. He responded with real interest and understanding when I said that as he got older, caring about other people would become a more important part of his life decisions.

Last, Robert is a huge man — 6'5", about 290 pounds — who beat a small boy to death while high on heroin. The prosecutor thought the jury would fear Robert — think him a monster, in fact — and convict him in a heartbeat. Wrong, fortunately. Robert is a bad junky, with a bad record, whom the police were trying to turn into a snitch when they got him out on a low bond before his last and worst crime. Robert is also a sweet man, a musician, remembered very fondly by some of his high school teachers, who writes rap songs and is collaborating with another inmate on children's books. (he writes, the other guy draws.) The last time I saw Robert, he put his arms around me. He's a good hugger, and (at his best) an openhearted man. Damn, wouldn't the world be easier if the monsters stayed monsters?

Every one of my clients has something of worth, tho' sometimes it is hard to find. What I want to say about my clients and about the death penalty is that redemption, even when it seems a forlorn hope, must never be ruled out. I end with a brief conversation between two figures in J.R.R. Tolkien's fantasy trilogy The Lord of the Rings:

"I don't understand you. Do you mean to say that you . . . have let him live on after all these horrible deeds. Now at any rate he is as bad as [a devil], and just an enemy. He deserves death."

"Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. I have not much hope that [he] can be cured before he dies, but there is a chance of it."

J.R.R. Tolkien, The Lord of the Rings, The Fellowship of the Rings, Ch. 2 The Shadow of the Past, pp 92-93, Ballantine (1965)