Saturday, April 11, 2009

Resurrection and Revenge

Resurrection and Revenge


"I am the resurrection and the life,” Jesus assured Martha,  adding that  though her brother Lazarus was dead, “yet shall he live.”

“Lord, by this time he stinketh, for he hath been dead four days” Martha says nervously.

To which Jesus responds,  “Said I not unto thee, that, if thou wouldest believe, thou shouldest see the glory of God?” So, according to St John’s Gospel, it came to pass. “He that was dead came forth, bound hand and foot with graveclothes: and his face was bound about with a napkin. Jesus saith unto them, ’Loose him, and let him go.’”

On March 18 Bill Richardson, governor of New Mexico, had his opportunity to raise the dead and bring them back to life. This was the day he signed a law, already ratified by the State Senate and House, formally ending  New Mexico’s death penalty.

Did Richardson ennoble this solemn occasion by endorsing the idea that all human life has value, and even those who have fallen into the lowest moral abyss are capable of redemption?  Did he cite Holy Scripture as buttress for such thoughts? He did not.

Richardson festooned the signing with language about this being the “most difficult decision” of his political life, arrived at only after he had toured the maximum-security unit where offenders sentenced to life without parole would be held. “My conclusion was those cells are something that may be worse than death,” he said. “I believe this is a just punishment.” 

Lest   anyone be under the misapprehension that the governor was endorsing some quaint notion  that all human life has value,  the governor was at pains to emphasize that since the new law comes into force only on July 1, the two condemned men currently residing on Death Row  in New Mexico still face execution.

For Richardson the flaw with the death penalty lies in its imperfection. “Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe.” Embalmed in this self-serving verbiage are many pointers to how seriously the whole cause of death-penalty abolition has gone off the rails, fleeing the arduous moral battleground where Revenge tilts against Redemption for the low-lying pastures of Efficiency.

With the death penalty, irreversible mistakes bring the whole justice system into well-deserved disrepute. But of course the state has a ready answer, one conveniently cued for them by the abolitionists who have set the stage for the state to offer its substitute: life without the possibility of parole (LWOP)—living death or, in Richardson’s creepy phrase, something “worse than death.”

Also recruited into the abolitionists’ arguments for efficiency have been pragmatic calculations that the death penalty is simply too expensive. It costs a ton of money, particularly in a state like California, to fight a death penalty case through the courts and the appeals process, pay for prosecutors and defenders to amass the data and the witnesses for the post-verdict penalty phases of the trial, get someone onto death row in San Quentin and then fight further endless battles over habeas corpus writs, stays of execution and so forth.

New Mexico’s lawmakers were bolstered by this rationale of cost-effectiveness. A cost assessment report pointed to the fact that in one case, State v. Young, the public defender office put up  $1.7 million to defend Young. Add in costs for the prosecutors and the courts and the bill soared to nearly $6 million. In that instance, the state Supreme Court barred the state from pursuing the death penalty further because insufficient resources were being provided for the defense.

Bill Clinton did his best to speed up the conveyor belt by signing the Antiterrorism and Effective Death Penalty Act of 1996. But it’s still a hugely expensive hassle to line things up so lethal injection can proceed. Against all this, what’s brisker than the offer of LWOP as part of a plea bargain? Sign on the dotted line. Pack the prisoner off to a concrete box and throw away the key. As the Dallas Morning News editorialized in support of LWOP for Texas, which is considering whether to abandon the costly death penalty in favor of confinement unto death: “It’s harsh. It’s just. And it’s final without being irreversible. Call it a living death.”

The pendulum is swinging against the death penalty. DNA evidence -- posthumously exonerating some, clearing others waiting to die  –has been a big factor in waning enthusiasm for the ultimate sanction. The current total of defendants on state and federal death rows is 3,307. Fifteen states don’t have the death penalty, New Mexico being the most recent.

Nothing much is going to change in New Mexico, except for the worse. The state has only formally executed one man since 1960: Terry Clark, a child-killer, had his appointment with the lethal needle in 2001 after abandoning further appeals. This number may soon swell to three because the two men whose situation I note above.  Presumably their chances of commutation have diminished, since no one wants to be accused of giving killers anything resembling a lucky break.

Meanwhile, the number of convicted people drawing the “living death” card will go up, as juries will likely find it easier to sentence defendants to living death—LWOP—with less worry about the irreversibility of a mistaken death sentence. There’s much less money available in states like California to fight imprisonment with parole than there is for the death penalty. Hence the paradox: someone condemned to death may have a better chance – in terms of access to the appeals process and high-price legal artillery – of reversal than someone fighting to get commutation of life imprisonment without hope of parole.

When I drive south to the Bay Area, I pass San Quentin, where 667 prisoners sit on Death Row. In the very unlikely event they get executed, they will have waited an average of 17.5 years from the moment they were condemned. Thirteen people have been executed in California since the US Supreme Court allowed capital punishment to resume in 1976. When I drive from Crescent City, at the northwest corner of California, with its terrifying supermax Pelican Bay prison, down Highway 101, jog over to Redding and head south on Interstate 5 to Los Angeles, I traverse a Gulag Archipelago in which thousands of prisoners are serving decade upon decade of hard time, with hundreds of them in solitary confinement, often for years on end. Yet it is the situation of the 667 that elicits maybe 98 percent of the energies of reformers.

How many prisoners nationally are under sentence of “living death”? The Sentencing Project, a non-profit organization based in Washington DC, says  there were 33,633 people serving life sentences without parole in the United States in 2003, which is 26.3 percent of the total number of people serving life sentences. The analyst at the Sentencing Project discloses  that they have tried to determine how many people are effectively serving life sentences without parole (i.e., life plus extra years), but that it’s been a nightmare to do so. They don’t even have a ballpark estimate.  There are at least 73 U.S. inmates -- most of them minorities -- who were sentenced to spend the rest of their lives in prison for crimes committed when they were 13 or 14.

The irony is that a moral debate is finally in motion over America’s horrifying sentencing laws. In New York State, the Rockefeller drug laws, which destroyed so many thousands of lives with mandatory sentencing, are being modified. Senator Jim Webb of Virginia is courageously trying to coax into life a national commission to review the criminal justice system. Webb tells the Washington Post that cops and prosecutors often target the wrong people and says he believes society can be made safer while making the system more “humane and cost-effective.” He flourishes a fine piece by Atul Gawande in the March 30 issue of The New Yorker stigmatizing solitary confinement (“at least twenty-five thousand inmates in isolation in supermax prisons”) as torture.

Humane! Now there’s a novel word. Maybe the notion of prison time as a path to redemption for murderers and pickpockets will creep through a crevice in the wall of prejudice that shields the national and political posture on crime and punishment.

This posture goes back to the very origins of the Republic. It was Tocqueville who lauded American penology, in the book he wrote with Gustave de Beaumont, On The Penitentiary System and who wrote in a letter in 1836, “Isolate the detainees in prison by means of solitary cells, subject them to absolute silence… prohibit every communication between souls and minds as between their bodies; that is what I would consider the first principle of the science [of prisons]. ”As Professor Sheldon Wolin writes in his Tocqueville Between Two Worlds, this was a theory of “total control…‘pure’ power and wholly opposite to the unlimited space, frenzied time and near anarchical subjects of Democracy.” The prison that Tocqueville and  Beaumont  particularly admired was Auburn, with its system of penitential solitary confinement developed by the Quakers, partly advanced as… a substitute for the death penalty, which they opposed on principle.



Donations can be sent to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD 21218.  Ph: 410-366-1637; Email: mobuszewski [at]


"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs


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