A New Millenium: Time To Stop Tinkering with the Machinery of Death

Remarks of Senator Russ Feingold at Columbia University School of Law
April 10, 2000

When Anthony looked at the calendar, he could see that he had only two more days to live. Where must your thoughts run when you can taste your own death in your mouth?

Do they turn, to paraphrase the lyricist Jonathan Larson: To sunsets, to midnights, to cups of coffee? To inches, to miles, to the roads you will not travel? To laughter, to strife, to the smiles you will not see? To mothers, to loves, to the children you won't embrace? To two thousand, eight hundred, eighty minutes? Of what do you ponder, when you think of your last two days on earth?

Anthony Porter came to that place in September 1998, on Death Row, in Cook County, Illinois. Sadly, in the United States of America at the turn of the 21st Century, the organized citizenry of 38 states and our Nation itself will almost certainly this year put a hundred people in that same place, wondering of what to think, with just two days to live. And the story was sadder still, because Anthony was innocent.

At the dawn of a new millennium, after five thousand years of recorded history, the time has come to reconsider whether government-sponsored killing should stop.

Society can take few more momentous decisions than to bring about the death of another human being. The decision takes from that person simply everything, alpha and omega, all that is or ever could be. In duration, the decision continues forever, irrevocably, without the remotest possibility of turning back.

Justice demands that where the consequences are so complete and final, the decision must be completely certain. When the destination is "the undiscover'd country from whose bourn no traveler returns," one must hesitate to step.

For Anthony Porter, when the calendar said that he had only two more days to live, the Illinois Supreme Court stayed his execution. A team of Northwestern University journalism students and their professor then tracked down the truth. They obtained a confession from another man, on videotape, that he had actually committed the crime. An Illinois judge ordered Anthony released from prison, after nearly 17 years in prison, separated from his mother, separated from his six children.

And then there's Ronald Jones, whom the people of Illinois had sentenced to die for the rape and murder of a Chicago woman. DNA evidence was found that exonerated Ronald.

And Anthony and Ronald are not really exceptional cases. Since the Supreme Court reinstated the death penalty in 1973, the people of Illinois have executed 12 people, and have lifted the death sentence from the shoulders of 13 people who had been on death row. The manifest uncertainty with which Illinois has been convicting defendants and sentencing them to die has led Governor George Ryan to impose a moratorium on carrying out the death penalty while he examines the system.

And Illinois is not alone in its predicament. Nationwide, since the Supreme Court reinstated the death penalty in 1973, courts have freed 85 people from death rows throughout the country. Even after prosecutors, juries, and courts decided beyond a reasonable doubt that each of these defendants deserved to die, other courts on reexamination found errors in judgment sufficient to reverse that decision. These reviews have freed one death row inmate from execution for every seven inmates executed. Just as the proverbial 13th stroke of a clock calls into question not only itself but the 12 other chimes that preceded it, this scandalously large number of demonstrated errors calls into question the certainty of the entire enterprise of killing.

A 1987 study found that between 1900 and 1985, 350 people convicted of capital crimes in the United States were innocent of the crimes charged. Many of those people came to that place where they had only two days to live. Some escaped execution by minutes. Regrettably, according to researchers Radelet and Bedau (in their 1992 work In Spite of Innocence), 23 had their lives taken from them in error.

The Marquis de Lafayette once said, "I shall ask for the abolition of the death penalty until I have the infallibility of human judgment demonstrated to me."

And when, in the wake of the Boston Massacre, John Adams defended the British soldiers accused of committing the killings there, he said:

"[I]t [is] more beneficial that many guilty persons should go unpunished than one innocent person should suffer. . . . [W]hen innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, 'It is immaterial to me whether I behave well or ill, for virtue itself is no security.'"

This is the central pillar of the American system of justice, that it is better that many guilty should go free than that one innocent should suffer. Sadly, history has demonstrated that time and again, America has brought innocence itself to the bar and condemned it to die. That history now demonstrates that even in America, innocence itself has provided no security from the ultimate punishment.

Leonel Herrera may have been innocent, but he could not demonstrate it to the satisfaction of the Supreme Court. A former Texas judge submitted an affidavit swearing that another man had confessed to the crime for which Leonel faced execution. But the Supreme Court said that at the late stage of his appeal, Leonel needed an extraordinary amount of proof to stop his execution. The people of Texas put him to death in 1993.

In response to the decision, Justice Harry Blackmun warned: "The execution of a person who can show that he is innocent comes perilously close to simple murder."

Because as long as there are executions, fallible humans will never to a certainty be able to avoid executing the innocent, the killing must stop.

From the beginning of memory, our species has debated the morality of killing. From the time of Hammurabi, nearly four thousand years ago, humans organized as a government have made killing an offense against the state. We think of Hammurabi as a great lawgiver for introducing proportionality to punishment.

But as much as we credit Hammurabi the lawgiver, his code also prescribed punishments from which civilized society came to shrink. Hammurabi literally called for an eye for an eye - not just the metaphorical eye for an eye to which the Bible alludes. Hammurabi's code called for breaking the bone of an aristocrat who broke another aristocrat's bone, for cutting off the hand of a son who struck his father. And among the 282 legal paragraphs in Hammurabi's code were 30 capital offenses, including death for the thief who could not afford to make restitution, and including death for an aristocrat's daughter whose father killed another aristocrat's daughter. I am thankful that, over the long millennia, the human race has moved to reject many of the cruel punishments from our ancient past.

The framers of the American Constitution wrote into that document that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Even at that time, such leaders as Benjamin Rush of Pennsylvania, a signer of the Declaration of Independence and a Member of the Continental Congress, wrote in opposition to the death penalty. Benjamin Rush warned of the death penalty: "It lessens the horror of taking away human life, and thereby tends to multiply murders."

And in the 1972 case of Furman v. Georgia, the Supreme Court held that, at least as it was then administered, the imposition and carrying out of the death penalty in the cases then before the Court constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

In his concurrence in Furman, Justice Douglas wrote: "It would seem to be incontestable that the death penalty inflicted on one defendant is 'unusual' if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices."

Justice Douglas continued:

"[T]he words ['cruel and unusual'], at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is 'cruel and unusual' to apply the death penalty - or any other penalty - selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board."

Justice Brennan, in his concurrence, wrote:

"If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes."

Justice Brennan concluded: "Under these principles and this test, death is today a 'cruel and unusual' punishment."

Justice Stewart wrote: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed."

Justice White concluded that "the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not."

And Justice Thurgood Marshall wrote in his concurrence: "I cannot believe that at this stage in our history, the American people would ever knowingly support purposeless vengeance. Thus, I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional."

But then 4 years later in the 1976 case of Gregg v. Georgia, the Court held that the death penalty does not invariably violate the Constitution. Thirty-eight states and the federal government have since found ways to draft death penalties that meet with the Supreme Court's approval, but as Judge Irving Kaufman wrote, "One generation's dissents have often become the rule of law years later."

I remember the day, after the Supreme Court reinstated the death penalty, the first execution took place in 1977 in Utah, when Gary Gilmore aggressively sought his own death by a firing squad. But I more vividly remember the day in May 1979 when the first involuntary execution took place. That morning, I finished my last law school exam. Later that day, I turned on the television and saw the news report that Florida had just executed John Spenkelink. I was overcome with a sickening feeling. The education in law that I had just completed had filled me with the belief that our legal system was advancing inexorably through the latter quarter of the 20th century. Instead, to my great dismay, I beheld a throwback to the electric chair, the gallows, and the routine executions of our Nation.s violent past. I will never forget that experience. I will never forget that day.

Today, throughout our Country, people of conscience are questioning the killing by the state that is carried out in our name. The Nebraska legislature passed a moratorium, although the governor vetoed it. Legislators in Alabama, Maryland, New Jersey, Oklahoma, Pennsylvania, and Washington state have introduced moratorium legislation. And last month, the New Hampshire House became the first legislative body in the Nation to vote to abolish an existing capital punishment law since the Supreme Court reinstated it in 1976. This February, Philadelphia's City Council became the eighth municipality to urge a halt to executions.

I have introduced legislation in the United States Senate to abolish the federal death penalty. In the House of Representatives, Congressman Jesse Jackson Jr. has also introduced a moratorium bill. Representative Jackson and I have met with administration officials to press for a moratorium on the application of the federal death penalty.

In 1997, the American Bar Association adopted a resolution calling for a moratorium. And late last year, the National Jewish/Catholic Consultation - a joint effort of the National Conference of Catholic Bishops and the National Council of Synagogues - issued a joint statement calling for the end of the death penalty, drawing on both ancient religions. teachings, from second century rabbis to Pope John Paul II.

And the balance of the world has distinctly moved away from the death penalty. By Amnesty International's count, over a hundred countries - the majority of countries in the world - have now abolished the death penalty in law or practice.

Since 1985, more than 35 countries have abolished the death penalty or, having previously abolished it for ordinary crimes, have abolished it for all crimes. These countries span the globe, from Angola to Azerbaijan, from Canada to Cambodia, from Moldova to Mozambique. During the same period only four countries reintroduced the death penalty, and one of those - Nepal - abolished it again.

It used to be that the United States stood with only the Soviet Union and South Africa in the industrialized world in its embrace of capital punishment. But Russia's former President Boris Yeltsin imposed a moratorium on all executions in August 1996. And South Africa's Constitutional Court declared the death penalty unconstitutional in 1995 and then its parliament voted to abolish it.

In 1998, the United States was one of just four countries that together accounted for 86 percent of all executions recorded by Amnesty International worldwide. We now stand in the company of China, the Democratic Republic of Congo, and Iran. Amnesty International has also received reports of hundreds of executions in Iraq, but could not confirm the reports.

In 1989, the United Nations General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, which provides for the peacetime abolition of the death penalty. At least 40 countries have now ratified the Protocol.

At least 33 European states have now ratified Protocol Number 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which also abolishes the death penalty in peacetime.

Three international conventions prohibit sentencing to death anyone who was under 18 years old at the time of their crime. The United Nations Subcommission on the Promotion and Protection of Human Rights adopted a resolution that condemned the United States, along with Iran, Nigeria, Saudi Arabia, Pakistan, and Yemen, for executing juvenile offenders. A report to the United Nations Commission on Human Rights also criticized the United States for breaching international standards in executing mentally handicapped defendants, a practice allowed in 28 of the 38 American states that have capital punishment.

Last year, the United Nations Human Rights Commission voted in favor of a resolution supporting a worldwide moratorium on executions. The United States voted against the resolution along with 10 other countries, including China, Bangladesh, Botswana, Indonesia, Pakistan, Rwanda, Sudan, and Qatar.

The European Union has passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and called on all states within the United States to abolish the death penalty. Germany announced that it would sue the United States in the International Court of Justice in The Hague for violating international laws and treaties by executing two German nationals last year in Arizona without consular access and notification of German authorities. German Justice Minister Herta Daeubler-Gmelin criticized the United States, saying, "Respecting international law cannot be a one-way street."

I traveled to ten countries in Africa at the end of last year, and I would often raise human rights issues with government officials with whom I met. I can remember that I questioned the minister of one government about its having detaining journalists. The minister replied: "You can hardly criticize us for imprisoning journalists when you have people sitting death row for 20 years."

Because our use of the death penalty increasingly isolates us in the civilized world, the killing must stop.

Other nations criticize the United States for the way in which our Nation has applied the punishment disparately by class and race.

The columnist Sydney Harris wrote in the Chicago Daily News: "One of the oldest Russian proverbs remains as inexorably true in modern America: 'No one is hanged who has money in his pocket.' Or as one might say, capital punishment is only for those without capital."

As well, the application of the death penalty also varies dramatically from one part of the country to another, or even within different areas of the same state. For example, a USA Today study found that those who commit a murder in upstate New York are more likely to receive a death sentence than those arrested here in New York City or its three largest suburban counties.

Most insidiously, the evidence mounts that the United States applies the death penalty differently to people of different races. Look at the numbers: Although African-Americans constitute only 13 percent of the American population, since the Supreme Court reinstated the death penalty in 1976, African-Americans account for 35 percent of those executed, 43 percent of those who wait on death row nationwide, and 67 percent of those who wait on death row in the Federal system. Although only 50 percent of murder victims are white, fully 84 percent of the victims in death penalty cases were white. Since 1976, America has executed 11 whites for killing a Black, but has executed 144 Blacks for killing a white.

The ghosts of institutional racism still haunt our courthouses. They intrude when lawyers select jurors, during the presentation of evidence, when the prosecutor contrasts the race of the victim and defendant, and when juries deliberate. The numbers tell the story: no matter how hard most of us try to exorcize the demons of our Nations past, we cannot seem to overcome their hold.

Because the risk appears substantial that people are dying because of the color of their skin, the killing must stop.

Some will say that the death penalty deters crime. Were that so, Europe would have a higher murder rate than the United States. But it doesn't, and it's not even close. The murder rate in the United States is six times that in Britain, seven times that in France, and five times that in Sweden.

But we don't even need to look across the Atlantic to see that capital punishment fails to deter crime. When Canada abolished the death penalty for murder, the homicide rate per 100,000 population fell from a peak of 3.09 in 1975, the year before abolition, to 2.41 in 1980, and has remained relatively stable since. Canada's abolition of the death penalty has not led to more murders.

Even closer to home, compare Wisconsin and Texas. I'm proud that my state of Wisconsin was the first in this Nation to abolish the death penalty completely, when it did so in 1853. Wisconsin has been death penalty-free for nearly a century and a half. In contrast, Texas is the most prodigious user of the death penalty, having executed about 200 people since 1976. But from 1995 to 1998, Texas has had a murder rate nearly twice that in Wisconsin. The deterrent value of the death penalty is more fable than fact.

Because the death penalty does not deter crime, the killing must stop.

Indeed, as George Bernard Shaw wrote, "It is the deed that teaches, not the name we give it. Murder and capital punishment are not opposites that cancel one another, but similars that breed their kind."

Just as parents who beat their children often raise children who grow up to beat their own children, the death penalty teaches the appropriateness of killing. Death begets death. For from the days of the Flood, we have known the wisdom that "Whoso sheddeth man's blood, by man shall his blood be shed."

Society breeds a casual attitude toward killing and death when through its government it sanctions the death penalty. With each new death penalty statute enacted and each execution carried out, our governments add to a culture of violence and killing. With each person executed, society teaches our children that the way to settle scores is through violence, even to the point of taking a human life.

Let me be clear. I believe that we must severely punish murderers and other violent offenders. I do not seek to open the prison doors and let murderers rush out into our communities. This is not about letting criminals off the hook. The question is not whether to free them. The question is whether our society should kill them.

William Randolph Hearst said, "What is murder in the first degree? It is cruel, calculated, cold-blooded killing of a fellow human man. It is the most wicked of crimes and the State is guilty of it every time it executes a human being."

Or, as the mathematician Blaise Pascal said, "Must we kill to prevent there being any wicked? This is to make both parties wicked instead of one."

Because the institution of the death penalty declares on behalf of all of us that killing is right, the killing must stop.

And should there not be some limit to the powers that the government can arrogate to itself in the name of the people?

Juan Raul Garza, who sits on death row in the Federal system, has exhausted his appeals. Sometime soon, he could become the first prisoner that the Federal Government has executed since 1963. What right does the Nation that represents us all have to kill this man in the name of us all, including those of us who live in the 12 states and the District of Columbia that have chosen to abolish the death penalty?

George Bernard Shaw said: "Assassination on the scaffold is the worst form of assassination, because it is invested with the approval of society."

Let it not be said that this is the will of the people. There should be some things beyond the power of a simple majority to elect. It should be beyond their power, to make us all complicit.

The philosopher Nicholas Berdyaev wrote: "Capital punishment is murder pure and simple. . . . It is the most striking instance of the state overstepping its legitimate boundaries, for human life belongs to God and not to man."

Think of the hubris. We mortals, when we put on black robes and employ uniformed men who carry guns, take upon ourselves the power of life and death. We cannot create a life, but we arrogate to ourselves the power to end it. As Benjamin Rush wrote, the death penalty is a "usurpation of the prerogative of heaven." At the least, it is a lack of due humility.

Because "Vengeance is mine . . . saith the Lord," the killing must stop.

Regardless of their crimes, those who wait on death row are still people.

Those who wait on death row are people, people who love, people who hope, people who feel pain. Many are fathers and mothers to children. Each one is some mother's child.

Because the condemned are people too, this government-sponsored killing must stop.

Among the Ten Commandments, the sages linked the commandment "Thou shalt not kill" to the first commandment about the identity of God, for when one destroys any single person, one effaces the divine image, which every person bears.

Because killing cheapens the value of life, the killing must stop.

This February, Betsy Wolfenden of Carrboro, North Carolina, wrote the Washington Post about those whom she called "the other victims of murder: the children of the men and women on our death rows." Betsy wrote:

"The . . . children whose parents are on death row . . . suffer in silence. I know of one 9-year-old who writes on his calendar, 'Daddy dies today,' each time his father receives a new execution date. . . .

". . . I would like to tell the families who have been harmed by the murders committed by our loved ones that we understand the pain they are feeling because we feel that pain, too. Their children are innocent victims - but so are ours. I pray that all children whose parents have been murdered will find comfort and peace. But my children may also lose their dad to murder, and I wonder who will weep for them."

That's what Betsy Wolfenden wrote.

Now, of course, I do not seek to absolve this man, or any murderer, for the wrongs that he or she did. But neither can our righteous anger with those wrongs blind us to the unnecessary further wrong that will be done these innocent children.

Because we should always strive, in this imperfect world, that no innocent child should have to bewail the loss of a parent to killing, the killing must stop.

The great lawyer Edward Bennett Williams summarized: Capital punishment "is inhuman because its deterrent effects are now recognized as myth. It is unjust because it leaves no remedy for mistake. It is unequal because it is exacted almost exclusively of the poor and the ignorant. It is, in effect, a relic of the barbarous days when our law demanded an eye for an eye."

Because the death penalty has become, in Justice Benjamin Cardozo's words, "an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life," the killing must stop.

Because, as Martin Luther King Jr. said, "The old law of an eye for an eye leaves the whole world blind," the killing must stop.

When he retired from his long career of supporting the death penalty, after voting against suspending it in Furman v. Georgia, and after voting to reinstate it in Gregg v. Georgia, the late Justice Lewis Powell told his biographer in 1991: "I have come to think that capital punishment should be abolished." Justice Powell came to find that the decision he most regretted was that in McCleskey v. Kemp, which held that statistical evidence of disparate racial application was insufficient to overturn the death penalty.

And in his 1994 dissent in the case of Callins v. Collins, the late Justice Harry Blackmun wrote:

"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored - indeed, I have struggled - . . . to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved . . . I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants . . . ."

Like Justices Powell and Blackmun, let us too reconsider our Nation.s position, and stop the tinkering with the machinery of death. Let us stop the killing to protect the innocent who have all too often been condemned to die. Let us stop the killing to join the civilized world in its progress from the barbaric past. Let us stop the killing so as not to reopen again and again the ancient wounds of racial discrimination. Let us stop the killing to honor the value of human life. And let us stop the killing to demonstrate once and for all that, not just with our eyes, we finally can see.