POST-ELECTION BLUES

There’s no way to sugarcoat what happened yesterday, and we won’t try. Indeed, in our capital punishment world the news was even worse than might appear already obvious – the attempt to repeal the death penalty failed in California, and the plan to speed it up passed; the attempt to reinstate it passed in Nebraska; and in Oklahoma a ballot initiative passed insuring that the state can carry out an execution some other way if it can’t find the drugs necessary to do it by poisoning. (But note that the news wasn’t entirely awful. Pro-moratorium Governors in civilized Oregon and Washington won.)

ACCR staff was working at a polling place all day. Many conversations were had, some of them predictably depressing. In one it was pointed out that Trump’s claim about skyrocketing crime rates was factually wrong, that according to the FBI and the DOJ violent crime rates were near all-time lows. “Those are your facts, not mine,” the Trump supporter responded. This conversation is particularly consistent with the recent Trump claim that the Central Park Five were guilty, irrespective of their exonerations through DNA. The appointment of Rudy Giuliani to a position at the head of the Department of Justice makes the thought of justice seem distant.

A post-factual and post-scientific world is not an easy place for a rational person to live in. But as John Adams said: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” Facts will prevail – we have had fewer death sentences and executions than at any time in recent memory, and no baseball hats with stupid slogans will change that fact. A friend of ACCR just texted that “we have bottomed out.” But if you’ve read your college share of Sartre, Camus, and Beckett, you’ll know that this is good news – we now have only one direction to go.

And speaking of Samuel Beckett, you might even recall the last lines of The Unnamable: “I can’t go on. I’ll go on.”

THE REPUBLICAN PLATFORM

We know we’re not the only ones who feel guilty for secretly hoping that Donald J. Trump got the Republican nomination. After all, who could have imagined that he might actually win? It wasn’t the racism and misogyny and Muslim-bashing that we thought might derail his candidacy – while he was more obvious about it than his compadres, he was hardly more sincere. Rather, we assumed he was just too buffoonish to be taken seriously, what with his moronic baseball hat, insipid slogans, and seeming inability to complete a sentence without repeating it again, to emphasize the profoundly middle-schoolish nature of his thought. Even in our feverish imaginations, we did not see this coming.

We know we’re not the only ones who hate the idea that the Republicans have co-opted the word “conservative” – have we become so academically illiterate, or the Republicans so good at stealing language, that we’ve forgotten the meaning of the word “conservative?” Is denial of global warming conservative? Or this, from our potential future Vice President, Mike Pence – “Time for a quick reality check. Despite the hysteria from the political class and the media, smoking doesn’t kill.” Or this from Ted Cruz at the RNC – “We [the GOP] passed the Civil Rights Act, and fought to eliminate Jim Crow laws.” Unless conservatism now means ignoring facts, debunking science, and rewriting history, none of the above has anything to do with the meaning of the word conservative. Indeed, it is hard not to recall the great Helen Hayes line from Anastasia: “Truth serves only a world that lives by it.”

Which brings us to the capital punishment platform of the Republican party: “The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment. With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states.” Where to begin?

Well, for starters, while the Fifth Amendment mentions capital punishment, it certainly does not endorse it as a timeless penalty beyond future scrutiny. For 70 years our courts have assessed the constitutionality of punishment by the “evolving standards of decency that mark the progress of a maturing society,” rather than by the opinions of the Framers, who viewed blacks as three-fifths of a person and women as unfit to vote. But why should the Republicans worry about obscuring the law, when they can simply lie about the facts? Murder rates are not “soaring” – of the 63 jurisdictions surveyed by the Major Cities Chiefs Association in May 2016, 32 showed an increase in homicides, while 27 showed a decrease and four remained the same in a first quarter comparison between 2016 and 2015. This is more of a little bump in the road than a major trend. But even these statistics can be very misleading.

Here are some facts that cannot be controverted. Murder rates across the country are as low as they’ve been in decades; and these rates are occurring at the same time executions and death sentences have plummeted. While no honest statistician would draw the conclusion that the lack of a viable death penalty has caused such declines, only a perniciously dishonest one would advocate capital punishment as a cure for the nonexistent problem of soaring homicide rates.

Finally, the GOP has condemned the Supreme Court’s “erosion of the right of the people to enact capital punishment in their states.” If saying it, or writing it in a platform, only made it so! There’s nothing – other than the good sense of legislatures who think money can be better spent on schools or roads or drug treatment facilities than on a mostly imaginary punishment fraught with error – stopping states from enacting death penalty statutes.

The trend among the states, of course, is in the opposite direction. And regardless of the code words and dog whistles used by Trump and the RNC, our country’s inclination is against racism, misogyny and Muslim-bashing as well. There may be the occasional electoral blip, but this sort of hatred can never prevail for long. Indeed, many true conservatives have rejected the vitriol, just as they have come to understand capital punishment as an anachronistic throw-back to an era long gone.

Now if only we can say the same thing about morons with orange hair wearing really stupid hats.

 

A Call To Action

It is impossible to overestimate the impact of the Pope’s visit on the United States, and the way he has inspired all of us who hope and work for repeal of the death penalty. His words to Congress will not soon be forgotten:

The yardstick we use for others will be the yardstick which time will use for us. The Golden Rule reminds us of our responsibility to protect and defend human life at every stage of its development. This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

And his words to the inmates at the Curran Fromhold Correctional Facility, while not directed at the death penalty, carried a message irreconcilable with the ultimate punishment:

This time in your life can only have one purpose: to give you a hand in getting back on the right road, to give you a hand to help you rejoin society. All of us are part of that effort, all of us are invited to encourage, help and enable your rehabilitation. A rehabilitation which everyone seeks and desires: inmates and their families, correctional authorities, social and educational programs. A rehabilitation which benefits and elevates the morale of the entire community.

The Pope’s visit came only one day after Justice Scalia, at a small college in Memphis, Tennessee, remarked that he “wouldn’t be surprised” if the United States Supreme Court found the death penalty unconstitutional. Scalia, in turn, was referencing the dissent by Justice Breyer and Ginsburg in the Glossip opinion only a few months earlier. It is hard not to hear the dominoes falling, one by one, on capital punishment.

The Curran Fromhold speech, like every event on the Pope’s itinerary, was well attended by civic leaders. Among the attendees was Seth Williams, the District Attorney of Philadelphia, one of a rapidly diminishing number of prosecutors in the entire United States still regularly seeking the death penalty and, like Justice Scalia, a Catholic. Was he listening to the Pope’s message? Judging by his tweets – “Powerful words from ‪@Pontifex redemption, forgiveness, mercy, justice, hope and love. ‪#PopeInPhilly” – it sounds like he was. If so, is he willing to forego the punishment that a huge majority of the civilized world has already put behind it? Only time will tell.

When the Pope spoke to the inmates at Curran Fromhold, he recognized that for them “it is a difficult time, one full of struggles.” For us, too. Change never comes easy personally or politically; and if we want to achieve the goal of a more humane criminal justice system, we must struggle to be heard. The Pope’s visit is nothing less than a call to action.

It’s Always Something

As one of our greatest and saddest comedians liked to say, it’s always something. A quick recap of the scandals in the Pennsylvania criminal justice system over the last year shows us just how astute Gilda Radner really was.

For starters, the racist, misogynistic, pornographic email scandal doesn’t seem anywhere near its endpoint. Having already claimed former Supreme Court Justice Seamus McCaffery – who resigned not only in the wake of email accusations but also allegations of ticket fixing and huge consultation fees given his wife – the scandal then proceeded to out former deputy attorney generals Frank Fina, Marc Costanza and Patrick Blessington. Each of them had been hired by Philadelphia District Attorney Seth Williams after their involvement with said emails, but Williams decided not to fire them. Bravely announcing his decision late Friday afternoon before Labor Day, Williams determined that “sensitivity training” might be the better course for his wayward lawyers.

Unfortunately, improper emails are not the only problem confronting our top law enforcement officials. The Philadelphia Inquirer has reported that Mr. Williams himself is being investigated by a federal grand jury for improper campaign spending – subpoenas have been issued to his political action committee, and the investigation is said to be a joint FBI/IRS effort.

But Williams’ problems pale in comparison to his archrival, Kathleen Kane, who as of this writing is still the Attorney General of Pennsylvania. In August, she was charged with illegally leaking information to the news media about grand jury proceedings in a 2014 case, then lying about it. That case involved former state prosecutors with whom she was feuding, namely the former deputy attorney generals now working for Seth Williams. But the tangled web doesn’t stop there – yesterday the Pennsylvania Supreme Court, acting unanimously at the behest of the Disciplinary Board, suspended Kane’s law license. Kane, seizing on the thin lifeline that she has not been ordered removed from office, insists that she will remain the Attorney General and that she is the victim of a vendetta by an “old boys’ network” of political and legal rivals. While this may or may not be true, she is now an attorney general who cannot sign legal documents, provide legal advice, or act in a legal capacity. Her next step, apparently, will be to release even more of the damning emails to prove the conspiracy she claims has been hatched against her.

None of this should give us confidence that law enforcement decisions are being made with the level of calm deliberation the public deserves. But there is one thing we can always count on – just as patriotism is the last vestige of a scoundrel, so is the urge to execute a citizen the last vestige of a prosecutor in trouble. The ink was barely dry on Governor Wolf’s declaration of a moratorium when Seth Williams and Kathleen Kane attacked it as an outrageous usurpation of justice. Of course, it is no such thing – given the number of well-documented death penalty reversals and exonerations, the atrocious lawyering and thinness of resources, the procedural carousel that is unfair to victims and defendants alike, the Governor’s decision was consummately reasonable and thoughtful.

The decision about capital punishment is the most serious one a law enforcement officer can make. We should expect a lot more from the elected officials who make them.

What Can You Say?

What can you say in the face of an inexplicable act? When you are committed to explanations – never excuses, but explanations – what can you say? When you are dedicated to opposing the death penalty unilaterally, no matter how heinous the crime or vilified the criminal, no matter how violated we might feel as a community, what can you say in light of Charleston?

Well, let’s start with the low hanging fruit first. Dylann Storm Roof, a skinny 21-year-old white supremacist with a ridiculous haircut and an unfortunately predictive middle name, seems to have lived the isolated, loner experience we might expect one with his views to live. A high school dropout with a pill problem, he scuffled around on the edges of the law absorbing the odium so easily found in this era of internet-charged access to the nether regions of hate groups. Sporting some badly outdated apartheid patches from South Africa and what used to be called Rhodesia on his Facebook profile photo, it seems likely he wouldn’t even have known the history of those countries without having been spoon fed it on a hate site. Of course, the answer to such a problem does not lie in the narrowing of the First Amendment – as long as we have it, and hopefully we always will, the lowest form of human speech will find its way into the open air. But in South Carolina you don’t have to plug in to find symbols of intolerance; all you need do is look up at the Confederate flag waving in front of the state capital. Under the absurd guise of respect for the heritage of the South, the shameful image of slavery continues to be dignified by a government. Does this excuse the mad killing of nine worshippers in a church? Of course not. But nor should we be shocked when such an atmosphere breeds demented violence in those who might be vulnerable to incitement.

And then there is the gun, the .45 caliber handgun he had to reload several times in order to achieve his goal of killing as many blacks as possible, the gun that was bought with the money given him as a birthday present by his parents. The president, saddened by the bloodshed but also enraged at the easy access this kid had to guns, couldn’t help but point out that sooner or later we had to come to grips with the laxity of our gun laws. We don’t know much about Dylann Roof’s home life or his upbringing, but very few of us would guess that he grew up in a home of diverse and tolerant views. Is there something we could do tomorrow to end the generational passing of hatred and intolerance? No. Is there something we could do tomorrow to end the possibility that a disturbed young man might walk into a Walmart and leave with a semi-automatic? Of course there is.

But the gun problem this country has, the outrage of a Confederate flag that continues to wave, the hate groups that fester on the internet, those are the easy targets. The much harder target is Dylann Roof himself, and what we do with him. What in the world was he thinking as he sat for an hour among those people he wanted to destroy? Was he struggling with his own hatred while those around him prayed and presumably welcomed him into their circle? Did he try to shout down the voices of hate in his own head, or listen to other voices that might have told him the Confederacy was dead and with good reason, that South Africa decades ago did away with apartheid, that Rhodesia is now Zimbabwe? Did he think for even a second that the violence he felt welling up inside him wasn’t going to achieve anything?

We may never know. There is a very good chance that even Dylann Roof doesn’t know, so consumed is he by delusions of starting a new civil war with the same sense of inhumanity that started the old one. What can you say in the face of an inexplicable act? That we must react with reason to unreason, and humanity to inhumanity. If there was ever a time to understand that violence only increases violence, this is it. This is what we must say.

NEBRASKA? SERIOUSLY?

When a good friend of ACCR’s heard that the reddest of red states, Nebraska, had voted to repeal its death penalty, he emailed: “Nebraska? Seriously?” Well, yes. Not only did the Nebraska legislature vote to repeal, but it overrode the veto of their Republican governor, Pete Ricketts. The vote crossed party and even religious lines – at one point in the final debate the sponsor of the bill, the great and long-standing Senator Ernie Chambers was accused of not believing in God – and legislators withstood a serious lobbying effort by law enforcement as well. Given that this vote busted up all sorts of stereotypes, the arguments that worked so well in Lincoln bear close examination.

Was it the drugs, or more accurately, the lack of drugs? No doubt. The Governor was so intent on keeping his state in the death penalty column that he spent $51,000 of taxpayer money to obtain lethal drugs from West Bengal, India – “the functionality of the death penalty in Nebraska has been a management issue that I have promised to resolve,” Ricketts declared. But in debate only minutes before the final vote, Ernie Chambers urged his fellow legislators to listen carefully to the Governor’s words: “He said he paid for the drugs, he never said he actually had them.” Nor was there ever any assurance that the drugs from West Bengal would meet constitutional standards for quality – did Nebraska really want to join the line of states that had suffered through a botched execution?

Was it the fact that the death penalty hadn’t been working the way it had been advertised, and that the state hadn’t executed anyone in almost 20 years? Certainly. Several legislators pointed out the risk of executing an innocent person, and others made the more nuanced but equally important point that the death penalty coerces innocent people toward an improper guilty plea out of fear of possible execution. (For a good example from Philadelphia, see http://www.theatlantic.com/national/archive/2013/08/the-confessions-of-innocent-men/278363/.

Was it that the Nebraska legislature got tired of wasting money? Of course. “The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years,” said Senator Colby Coash, a Republican. “This program is broken. How many years will people stand up and say we need this?” Legislators interspersed the “failed government program” motif with the words of Justice Stevens and the late Justice Blackmun, both of whom concluded after many years of tinkering that the death penalty simply couldn’t be fixed.

And was there a clear recognition – particularly in this day of supermax prisons and plummeting crime rates and the DNA-infused recognition of how easily we can and do make mistakes – that the death penalty is not morally justified? Over and over again legislators stepped to the podium to point out the fallacy of deterrence, the myth of closure for victims who must suffer through mandatory death penalty appeals, and the plain truth that retribution is just a fancy word for vengeance. Finally, many relied on the conclusion that seems so obvious to so many of us – it is simply wrong to kill.

What can we take from repeal by a state so conservative that it hasn’t seen a Democratic governor or senator this century? That injustice resonates for everyone, that the horror of a botched execution is no less horrifying if you prefer smaller government, that conservatives are no more in favor of wasting money than liberals, that unnecessary killing is wrong, and that putting executions under color of law may make them legal but doesn’t make them right.

It took 30 votes to override the governor’s veto in Nebraska, but no one rushed to take credit. As Omaha Sen. Robert Hilkemann said, his vote to override was not the deciding one. “We were all No. 30.” And today we are all Nebraskans.

 

TAKING NOTE

We should take note when a good one passes. Dean Smith, the longtime coach of the University of North Carolina Tar Heel basketball team, was much beloved by basketball fans everywhere – he was a Hall of Fame coach of some of the greatest players ever, including Michael Jordan; an innovator with some of the most creative ideas the hard court has ever seen; and a man who made sure that 97% of his players graduated from college. But that was the tip of the iceberg.

Dean Smith integrated the Atlantic Coast Conference, at the time the most prominent league in the country. Charlie Scott, the first black player with a scholarship at UNC, had this to say about his coach: “Coach Smith never treated me like the first African-American to go to the University of North Carolina. It was all any person would want to be treated like — like everybody else.” He integrated more than just a basketball team, though; he helped a graduate student break the color line in an all-white neighborhood in Chapel Hill, and then broke bread at an all-white restaurant as well. He was also ahead of his time in protesting against the Vietnam War and nuclear proliferation, for equal treatment for women, and for LGBT rights. Years ahead.

But we wouldn’t be blogging about him if there wasn’t more. He took a stand against the death penalty when it was a highly unpopular position in North Carolina, and when Dean Smith took a stand he didn’t just mouth the words. He took his players to death row In Raleigh and to Angola Prison in Louisiana, and had them interact with the inmates. In 1998 he went with a delegation from People of Faith Against the Death Penalty to meet with then Governor Jim Hunt in a desperate attempt to save a mentally ill condemned man named John Noland. Pointing a finger at the governor, Smith called him a murderer – then he pointed at the others in the room and said, “And you’re a murderer, and you’re a murderer, and I’m a murderer.” He didn’t save Noland, who was executed two weeks later, but it didn’t stop him, either. “I really haven’t done much other than send a little money and talk to the governor and do some public-service announcements, so don’t make me out to be too much of a hero,” he said.

Dean Smith’s fight is not over, of course. But since his passing many have recalled his bravery, from the basketball court to the lunch counter to the governor’s office; and there is a sense that we are closer to his vision than we have ever been before. The good ones leave you feeling that way.