Sonny's Corner: Debating the Death Penalty - Again, Part Three


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Sonny Foster"Sonny's Corner" is a regular column in Prairie Fire, featuring commentary on civil rights and justice issues. Our friend and Omaha colleague, Joseph P. "Sonny" Foster, died suddenly at age 54 in August 2005. He left an uncompleted agenda, as did many of our civil rights and justice mentors and heroes. We shall attempt to move forward on that unfinished agenda through this column.

By Fran Kaye

This third part of a series examines new voices against the death penalty and concludes the examination of capital punishment in Nebraska as shown at the Judiciary Committee hearing on March 13, 2013.

There were new people this year, testifying against the death penalty. The National Coalition to Abolish the Death Penalty sent out a jaunty email, titled “Not Just for Liberals and Democrats” to recruit conservatives against capital punishment. Stacy Anderson, the current executive director of Nebraskans for Alternatives to the Death Penalty (the old name, Nebraskans Against the Death Penalty having been deemed too negative), comes from an evangelical religious tradition that in the past has entered the debate mostly to remind us, sternly, that their Bible demanded an eye for an eye. Her friend, Bill Thornton, rose to speak as a private citizen but also as an evangelical minister who had once supported the death penalty. Current U.S. society is, in many ways, different from the biblical societies of Abraham and Jesus. It has options other than executions for keeping innocent people safe, and evangelicals, Thornton said, are becoming more aware of injustices carried out in the name of society. The Bible, he reminded the committee, commanded kings and governments to protect the poor and save the innocent from persecution. For Jesus no person is beyond redemption, and the state should not have the right to cut off a life before a sinner could repent. Sen. Ashford immediately underlined this point: no secular government had the right to deny the power of redemption. I remember Cantor Michael Weisser testifying at some long-ago death penalty hearing that the law of an eye for an eye was intended to be a ceiling, not a floor. A just punishment could not be more severe than the original crime, but even the harsh Jehovah of the Torah did not demand that the punishment be at least as cruel as the crime. I had not expected a Nebraska evangelical minister to be singing out of the same songbook as the liberal and sometimes controversial Cantor Weisser, but I was delighted to hear him. Bill Thornton and Stacy Anderson are much closer to Nebraska’s majority than are Cantor Weisser, or I (an old-time “pinkie hippo”) or most of the founders of NADP. More even than the exonerated innocent or the tortured families of murder victims, Bill and Stacy appeal directly to the soul of Nebraska, and I am enormously grateful for their leadership.

One of the most powerful arguments for the death penalty is that executions put potential murderers on notice and thus deter them from becoming actual murderers. A few years ago a spate of articles came out purporting to show that each execution deterred up to 80 or 90 murders. These were stunning findings, quite overturning the orthodox analysis that showed no deterrent effect of capital punishment and possibly an aggravating effect on murder rates, as violence begat more violence. The new models were also just plain wrong. Other statisticians pointed out that the new articles were based on false assumptions. Murder rates were declining across the U.S., equally in states with and without the death penalty. The deterrence theory had to argue, falsely, that executions in Texas deterred murders in Michigan or Iowa, states without a death penalty, and that executions were the only reason for declining murder rates. Stacy testified that she had talked to many law enforcement officers, and none thought the death penalty was a deterrent. If you want fewer murders, they said, put more officers on the street and investigate cold cases more aggressively. Fear of getting caught was a far, far more vivid deterrent than fear of being executed, especially when executions were rare and quixotically determined. I’ve volunteered in prisons for a long time, almost as long as I’ve attended judiciary hearings on the death penalty. And so I have a number of friends serving long or life sentences for murder, including friends who have been on death row. Most murders are committed in a passion or a panic, with no time to think about the consequences. Many people who commit murders are poorly educated, perhaps illiterate, pay no attention to politics or even to the law, don’t believe they will get caught and have no idea whether or not Nebraska is a death penalty state or whether or not anyone has been executed recently. One man, whose crime was more calculated than most, said he lived a dangerous lifestyle and did not expect to survive past age 30. Execution by the state seemed infinitely far away compared to being shot or knifed in the street or dying of an overdose. Once, a friend who’d been in the penitentiary when all three of the most recent executions were carried out told me that the mood was somber. Everything was locked down, and everyone was aware of what was going on and feeling that “There but for the grace of God go I” feeling. It was, he said, like the feeling the men had the night of the Hallam tornado or on 9/11. Not anything to do with a deterrent. Just the unnerving feeling of being locked up and helpless when something very scary was happening. A surprisingly large proportion of mass murderers, including Omaha’s Von Maur shooter, turn their guns on themselves and actually plan their murders as a prelude to their own suicides. Death represents no deterrent to them.

LB 543 gained seven votes from the committee to advance to the floor, where it will soon be debated. Even the committee’s eighth member abstained instead of voting against the bill’s advance. Significantly, it is the newest senators who are most likely to support the death penalty. Term limits, while bringing in some excellent death penalty opponents, like Steve Lathrop and Amanda McGill, both on the Judiciary Committee, have also brought us senators who have never really thought about how capital punishment works but, like many Americans, assume that we’ve always had it, so it must be doing something worthwhile. Too often they then get term-limited out just at the point when hearings, constituent lobbying and floor debate have educated them. There is so much to learn, as there is for any knotty problem in state government. There is innocence and closure, deterrent and cost, the Catholic idea of a seamless garment of life from conception to natural death and the emerging Evangelical recognition that it is wrong for the state to interrupt a sinner’s path to redemption. There is the sheer capriciousness of determining who are “the worst of the worst” and thus deserving of death, and there is the inescapably racist nature of the law’s application. Two of the three men executed under our present statute were black and one white; of the 11 men currently on Nebraska’s death row, five are Hispanic, four white and two black. But Ernie Chambers will not give up. Both he and Ashford have returned to the legislature after being term-limited out, and both bring the extraordinary commitment and passion they have developed for abolition over the years. Alan Peterson will not give up. Norma Fleisher, who at 84 drove her 19-year-old Toyota to every county in the state to hold conversations about the death penalty, will not give up. (Norma missed this year’s hearing because she was in the hospital having a knee replacement, but I briefed her in the rehab home afterward.) Curtis and Amy will not give up. Six states in six years have abolished the death penalty. There are 32 left. Will Nebraska be in the next six? I, personally, would like to be like the other western democracies and get rid of both the death penalty and life in prison, but one step at a time. Let’s abolish all forms of capital punishment, end life in prison without hope of parole for those who commit crimes as children and kick the can down the road on infinite life sentences for adult offenders.

We can do it. Despite violence and war, despite our refusal to believe in the common good, we shall overcome legalized lynching, as my friend Leola Bullock used to call it, in the United States. After all, even John Wayne could have portrayed Curtis McCarty, doggedly proclaiming his innocence and keeping his soul intact for more than 20 years buried underground. Can’t you see the trailer now? “When Truth, Justice and the American Way” link hands with “Thou Shalt Not Kill”?

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