David Von Drehle explo res the death penalry posr-1976 in Among
the Lowest of the Dead: The Culture of Capital Punishment. Drehle
CU LT CRJT
Death &
Sentences
By Martha Anne Toll
MICHAEL MORTON WAS LUCKY; his prosecutor didn'r seek
the death pen;tlty. Instead, Morton got a life sentence for the murder of his wife, while his wife's killer went free-and bludgeoned to
dearh at leas r one other woman. After 25 yea rs oflockup, Morron was
exonerated by borh DNA and evidence thar his prosecuror illegally
withheld at trial. In Getting Life, Morton describes hi s means of escape during rhar quarter of a century: "Wirh a book, we could climb
over the walls, walk on rhe beach, meet new friend s .... I read my way
out of prison every day. Ir did more rhan keep me amused. Ir kept me
sane - and safe."
More rhan 60 years ago, rhe Pen nsylva nia j urist C urris Bo k
publi shed Star Worm wood, a novel about a
young boy whose life of
emotional and physical
deprivarion lands him
in the electric chair.
Bok was protesting
a criminal and penal
system "founded on
vengeance.
C apital
punishment, Bok noted,
is rhe "mosr dramatic
form of punishmenr ....
Someday we will look
back upon our criminal
and penal process with
rhe same horrified won·
der as we now look back
upon the Spanish Inquisition.''
Although we haven't reached rhar "someday," rhe U.S. death penalty
is atrophying. Books continue to offer keys roour fraughrrelarionship
with capital punishment.Just considering a fra ction, rather than sup·
plying an exhaustive catalogue, a number of standouts provide great
insights intoexecurion American-style.
For how we arrived in rhe "modern era," Evan Mandery's A Wild
Justice isa good place tostarr. ll1ebook takesacomprehensivelook behind rwo key Supreme Court decisions. The first ruled rhe death pen·
airy unconsticurional in 1972 under the Eighth Amendmenr's prohibition againsr"cruel and unusual punishments" {Furman v. G eorg ia),
and, in a stunning reversal, the second reinstated it in 1976 {Gregg v.
Georgia). A Wild Justice not only chronicles the drama behind the
scenes at rhe Supreme Court; it also provides compelling character
studies ofthe players involved, lawyers andjudges alike.
illusrrares rhe death penalty's Byza ntine legal architecture t hrough
rhe lives of people on death row. H e points up cou nrless inconsistencies char quickly lead to troubling moral dilemmas abour who we put
to death and why.
We're in terrible company, sharing the practice o f state-sponsored
killing with Chad, China, Iran, Iraq, orth Korea, Sudan, Saudi
Arabia, and Sy ria. (For further information, and for other death pen·
airy statistics cited here, visit dearhpenalryinfo.org.) We have bo th a
federal anda military death penalty; the rwo aredifferent. Thirry-rwo
American srates have the death penalty on the books. but fortu na tely
most don't use ir. For example, in 2014, only seven states carried our
executions. Ironically, states with the death penalty have consisten tly
higher crime rates than those without it. In hergroundbreakingDead
Man Walking, Sister Helen Prejean notes thar in "Canada, rhe homicide rate peaked in 1975, rhe year before the d eath penalry was abolished, and continued rodeclinefor ten years afterward."
Capital punishment is not a deterrent.
M ost countries have either officially abolished it or d o nor use it.
The abolitio nist nations include the entire Europea n Un ion {in fac r,
abolition is a requirement for membership). much of Central and
Sourh America, and, to
name a few, Cambodia,
Mozambique, Rwanda,
South Africa, Turkey,
and t he Ukraine. There
are 35 countries char
re tai n t he death penalty
on rheir books bur have
nor used ir in ar least ten
years. Included in the
g roup arc Algeria, Benin, Ghana, Morocco,
Myanmar, Tajikistan,
and T un isia.
Yet Americans keep
executing people despite the fall ibility of
human judgment and
errors both egregious and well-documented. Innocent people are
condemned to death and executed. And there is no such thing as a
"humane" execution. Witness rhe recent spateofborches with experimental drug cocktails. A s Austin Sa rat documents in Gruesome Spec·
tac/es, botched executions have been with us for a long time. ll1ere's
cost, as well. Capital cases are much more expensive than noncapiral
cases.
Mosr important, racial bias infects every parr of the system. "The
racial terrorism o fl ynching in many ways created the modern death
penalry," wrires the celebrated lawyer Bryan Stevenson in his memoi r.Just Mercy. "America's embrace ofspeedy executions was, in part,
an arrempr to redirect the violent energies oflynching while assuring
white southerners that black men would still pay rhc ultimate price."
The con nection berween race, lynching, and capital punishment
fills volumes. We incarcerate more people than any ocher country, and
WE'RE IN TERRIBLE COMPANY,
SHARING THE PRACTICE OF
STATE-SPONSORED KILLING
WITH CHAD, CHINA, IRAN, IRAQ,
NORTH KOREA, SUDAN, SAUDI
ARABIA, AND SYRIA.
14 HECK •.o.2015/ 16
those people are disproportionately African-American. The effects are devastating.
Sentences are punitively long. Housing, employment, public benefits, and voting rights
are frequently off-limits to people with criminal records, making old forms of discrimination, as Michelle Alexander writes in The
THANANYOTHERCOUNTR~
New Jim Crow, "suddenly legal again .... We
have not ended racial caste in America; we
have merely redesigned it."
Nevertheless, the death penalty has been
narrowed in 21st-century jurisprudence. A
few examples: At least 44 people classified
as mentally retarded (I.Q. scores generally below 70) were executed from 1976 to
and Kirk Bloodsworth's gripping account
Kemp, the court was presented with legal
scholar David Baldus's cutting-edge staof Bloodsworrh's early DNA exoneration
2002, when the Supreme Court declared
following first a death sentence and then, on
it unconstitutional to do so (Arkins v. Virtistical analyses showing that black defendants who killed white victims were more
retrial, two consecutive life sentences for the
ginia). The government must now prove
likely to receive death sentences in Georgia.
alleged rape and murder of a nine-year-old
that capital defendants are not too intellectually disabled to die. Further, it is no lonThe court accepted the findings but held the
girl.
evidence insufficient to warrant reversal.
To be clear, the vast majority of people on
ger possible to execute someone for crimes
Dissenting justice Brennan noted that the
death row are guilty. They have committed
committed before reaching the age of 18.
heinous crimes that have destroyed famcourt majority seemed to have a "fear of too
The Supreme Court abolished the juvemuch justice."
nile death penalty in 2005
Unsurprisingly, the poorest
(Roper v. Simmons). But
defendants
fare
worst.
even then, three justices
Indigence means having to
d issented.
rely on incompetent lawyers,
There have been other
often
with
disastrous
gains as well. Since 2007,
consequences.
six states have repealed the
JF,.,,,. SHAU. ...
Why represent somedeath penalty (New York,
one who's done something
New Jersey, New Mexico,
so horrific? In ) ust Mercy,
Illinois, Connecticut, and
a
Bryan Stevenson describes
Ma ryland), and Innocence
%
iii
conversations with clients
Projects have been estabc:
------~ "TI
struggling over their pasts.
lished around the country,
~OSTAGE J¢ ~
"Each of us is more than the
with the mother ship in
worst thing we've ever done,"
New York. These projects
Stevenson writes. "If somehave exposed and proven the
one tells a lie, that person
un reliability of eyewitness
is not just a liar. If you take
identification, sloppy and
something that doesn't becorrupt forensics, false conlong to you, you are not just a thief. Even if
fessions, and abysmal lawyering. The scholilies and devastated communities. They
you kill someone, you're nor just a killer."
have raped and murdered, burned and bludarship of Hugo Bedau and Mike Radelet
David Dow's two memoirs are stark, perwas pioneering in this field. Attorneys Barry
geoned people. They can be unrepentant and
Scheck and Peter Neufeld, path-breaking
sonal accounts of what it feels like to hold
hateful. But the system is arbitrary; most
innocence lawyers, have written extensivesomeone's life in your hands, as their attorconvicted murderers don't get the death penly as well. James S. Liebman's The Wrong
ney. At the opening of The Autobiography
alty. Geography (site of the crime) can be deof an Execution, Dow asks, "If you knew at
Carlos: Anatomy of a Wrongful Execution is
terminative. Just 2 percent of U.S. counties
an exhaustive study of a man convicted and
precisely what rime on exactly what day you
have produced 52 percent of executions and
executed for a crime he didn't commit. John
~ere going to die, and that dare arrived, and
56 percent ofdeath sentences since 1976.
G risham, too, treated the question of innothe hour and minute came and went, and you
The death penalty is disproportionately
cence in his first work ofnonficrion, TheI nnowere not dead, would you be able to enjoy
mered out in cases where the victim is white,
cent Man. Bur perhaps the best starting point
each additional second of your life, or would
an argument that was unpersuasive to the
on innocence is Bloodsworth, Tim Junkin
you be filled with dreadful anticipation that
Supreme Court in 1987. In McCleskey v.
WE INCARCERATE MORE PEOPLE
AND THOSE PEOPLE ARE
DISPROPORTIONATELY AFRICANAMERICAN. THEEFFECTSARE
DEVASTATING.
... , .....BLI.
A.o.201 5/1 6 HECK 15
would turn relief into torture?"
Dow frames this question against his client
Jeremy Winston's 27-minute delay in execution as Dow's legal team volley with the clerk
of the Supreme Court in desperately futile,
but routine, last-ditch filings.
Dow skillfully brings the reader into his
clients' lives as he navigates the treacherous shoals of his work, managing crushing
stress while trying to be a decent father and
husband. He doesn't pretend his clients are
angels, but he doesn't hide his attachment
to them, either. Part philosopher, par ~
cynic, all humanist, Dow weaves together
insights gleaned from his clients and his
own life. "People think death row inmates
find religion because of their proximity to
the gurney. That's not it at all. They feel
remorse because they cannot escape what
they have wrought."
Fiction opens an avenue to probe the
hearts and minds ofthe accused themselves.
Richard Wright presents acompellingand
eloquent argument for representing such
a client in his novel Native Son. "This man
is different, even though his crime differs
from similar crimes only in degree," says Boris Max, the lawyer for two-time murderer
Bigger Thomas, an African American. "The
complex forces of society have isolated here
for us a symbol, like a germ stained for examination under the microscope. The unremitting hate of men has given us a psychological
distance that will enable us to see this tiny
social symbol in relation to our whole sick
social organism. I say, Your Honor, that the
mere act of understanding Bigger Thomas
will be a thawing out of icebound impulses, a
dragging of the sprawling forms of dread out
of the night offear into the light of reason, an
WHO IS
HELPED BY
KILLING
PEOPLE?
16 HECK A.D.2015/16
unveiling of the unconscious ritual of death
in which we, like sleep-walkers, have participated so dreamlike and thoughtlessly."
In the end, Bigger gets the electric chair but
not before he acknowledges the humanity in
his lawyer: "You asked me questions nobody
ever asked me before. You knew that I was a
murderer two times over, but you treated me
like a man."
In John Grisham's The Chamber, the reader spends hundreds of pages with Sam
Cayhall, a hateful, unrepentant Klansman
involved in killing African Americans and
Jews and causing widespread destruction
through a series ofbombings in Mississippi.
He's virtually annihilated his relationship
with his remaining family, but his estranged
grandson shows up to represent him during
the last month of his life. Grisham forces the
reader to ask whether it's necessary, or even
fair, to gas Cayhall. Grisham makes another important point. The people who implement the death penalty "are not supporters"
of capital punishment. Grisham's prison
warden hates it, because "the burden of factual killing" is his.
Paul Cody's So Far Gone explores the psyche
ofJack Connor, on death row for murdering
his mother, father, and grandmother. The
book unwittingly advocates for mitigationthe pretrial investigative process that, done
well, paints a human picture of a defendant
before the jury.Jack is a deeply troubled character, with his changing voice and his eerie,
ambiguous sense of time, and the reader is
not prepared for the way in which he murders his family. But through the increasingly
dense heft of each chapter, it becomes impossible to judge Jack 's actions. Even his priest is
confused.No doubt, that's the point.
Wright takes on a racist system in
Native Son. Here, Bigger describes the
impossibility of getting ahead in a white
world: "You get a little job here and a
little job there. You shine shoes, sweep
streets, anything.... You don't make
enough to live on. You don't know when
you going to get fired. Pretty soon you
get so you can't hope for nothing. You
just keep moving all the time, doing
what other folks say. You ain't a man no
more. You just work day in and day out
so the world can roll on and other people
can live. [White folks] own everything.
They choke you off the face of the earth.
They like God .... They don't even let you feel
what you want to feel."
Awaiting the electric chair, Bigger tries once
more to articulate what he does feel: "I never
wanted to hurt nobody.... I didn't mean to do
what I did. I was trying to do something else.
But it seems like I never could. I was always
wanting something and I was feeling that nobody would let me have it. So I fought 'em. I
thought they was hard and I acted hard .... But
I ain't hard .. .. I ain't hard even a little bit."
Ernest Gaines's A Lesson Before Dying tells
the heartbreaking story of a young black man,
Jefferson, in the wrong place at the wrong time,
witness to a robbery gone south in a small Cajun town in Louisiana. Jefferson's godmother,
Miss Emma, stops listening at his trial, because "she knew, as we all knew, what the outcome would be. A white man had been killed
during a robbery, and though two of the robbers had been killed on the spot, one had been
captured, and he too would have to die.''
Grant Wiggins is a new teacher in town.
Grant's aunt and Miss Emma insist that
Grant meet with Jefferson during the last
days before his electrocution. Grant accompanies Miss Emma on a series of visits
that begin in anger and stubbornness and
progress to deeply humanizing encounters
between Jefferson and Grant. The visits may
be helpful for Jefferson, but they are transformational for Grant. A Lesson Before Dying
may be the most persuasive fictional account
of the glaring injustices of the death penalty.
The system is broken. "I do what I do because I'm broken, too," Bryan Stevenson
writes in Just Mercy. "You can't effectively
fight abusive power, poverty, inequality,
illness, oppression, or injustice and not be
broken by it.''
Stevenson founded the Alabama-based
Equal Justice Initiative to provide legal representation "to indigent defendants and
prisoners who have been denied fair and just
treatment in the legal system.'' Echoing Bigger Thomas's lawyer in Native Son, Stevenson
offers this choice: "We can embrace our humanness, which means embracing our broken natures and the compassion that remains
our best hope for healing. Or we can deny our
brokenness, forswear compassion, and, as a
result, deny our own humanity.''
Who is helped by killing people? For similar crimes, some people are executed while
others are imprisoned; it depends on the
state. There are shattered family members who understandably want
nothing more than to see their daughter's or mother's or father's or
son's murderer put to death. Another round of appeals is intolerable,
every legal maneuver only adds another agonizing layer to pain that
is already unbearable. Through her lens as a nun, Sister Helen Prejean explores victims' unending anguish in Dead Man Walking. Faith
communities have played an important and evolving role in the debate
about the American death penalty.
Much more needs to be done to support victims' families. The crimin al justice system fails them, too. Money expended on the death penalty could be better spent providing support to the bereaved. An active
group of murder victims' families opposes capital punishment "as a
profound violation of human rights." Having suffered tragic loss, they
believe "that the death penalty does not help us heal and is not the way
to pursue justice for victims."
Bud Welch, whose daughter was killed in the 1995 bombing of the
Murrah Federal Building, in Oklahoma City, came to oppose the
death penalty. At first he wanted her murderer "to fry," he writes. "In
fact, I'dhavekilledhimmyself. ... Unable to deal with thepainofJulie's
death, I started self-medicating with alcohol.. .. Then, on a cold day
in January 1996, I came to the bombsight-as I did every day-and
I looked across the wasteland where the Murrah Building once stood.
My head was splitting from drinking the night before and I thought, 'I
have to do something different, because what I'm doing isn't working."'
Many have written about this. Rachel King's Don't Kill in Our Names
presents the stories of ten murder victims' families who oppose the
death penalty. Azim Khamisa's From Murder to Forgiveness and Bill
Pelke's Journey of Hope document the harrowing personal passages
through griefthat led them to oppose the death penalty.
Our penal system is retributive. We fail to support victims. We abandon former offenders returning to their communities after mammoth
sentences. We lock people up and throw away the keys. We execute
people on a random and ongoing basis. Rehabilitation and redemption, close relatives of mercy, are too scarce in America.
Mercy, Bryan Stevenson believes, is at the far end of brokenness:
"There is a strength, a power, even, in understanding brokenness, because embracing our brokenness creat~s a need and desire for mercy,
and perhaps a corresponding need to show mercy. When you experience mercy, you learn things that are hard to learn otherwise. You see
things you can't otherwise see; you hear things you can't otherwise
hear. You begin to recognize the humanity that resides in each of us."
The great Russian novelist Fyodor Dostoyevsky understood the
power of mercy. In Crime and Punishment, Radian Raskolnikov,
who premeditated one murder and ended up committing two, is sentenced to eight years in Siberia after finally confessing his crime. Toward the end of his first year of imprisonment, Raskolnikov realizes
that he has fallenfo love with Sonia, the indigent waif turned prostitute turned confessor/healer. In her expansive mercy, Sonia has followed Raskolnikov from St. Petersburg to Siberia. "Seven years, only
seven years!" is left in Raskolnikov's sentence when he stumbles upon
his feelings for Sonia.
Perhaps it's Dostoyevsky who, at the close of his novel, gives us the
best reason for closing the book on the death penalty: "[RaskolnikovJ
did not know that the new life would not be given him for nothing,
that he would have to pay dearly for it, that it would cost him great
striving, great suffering.'But that is the beginning of a new storythe story of the gradual renewal of a man, the story of his gradual regeneration, of his passing from one world into another, of his initiation into a new unknown life. That might be the subject ofa new story,
but our present story is ended."±
A.o.2015/16 HECK 17
Contributors (cont'd.)
Contributing Editor NANCY LEMANN is the author of
Lives ofthe Saints, The Ritz of the Bayou, Sportsman's
Paradise, The Fiery Pantheon, and Malaise. Her work has
appeared in Esquire, the Paris Review, the New York
Observer, Habitus, Xavier Review, and others.
Contributing editor JILL MAGID is a New York-based
artist and writer who has had solo exhibitions at Museo
deArte Zapopan, Guadalajara;SouthLondon Gallery;
Berkeley Museum ofArt; Tate Modern; Whitney Museum
ofAmericanArt; StedelijkMuseumBureauAmsterdam;
Yvon Lambert, Paris and New York; Gagosian Gallery,
New York; and the Security andintelligenceAgencyofthe
Netherlands. Magid has participated in the Liverpool,
Bucharest, Singapore, Incheon, Performa, and Gothenburg biennials. She has performed at the Museum of
ModernArt; New Museum, New York; and SouthLondon
Gallery. Magid is theauthoroffournovellas and teaches at
Harvard and Cooper Union. More:jillmagid.com
SARAH MARSHALL grew up in Oregon and is an English
Ph.D. candidate at the University ofWisconsin-Madison.
She was the recipient ofa 2014 OregonLiterary Fellowship,
and her poetry hasmostrecently appeared in Bird's Thumb,
Hobart, Blue stem, and Mayday.
Contributing editor D. T MAX is a staffwriter at The
New Yorker. He has written two books, The Family That
Couldn't Sleep: A Medical Mystery, an investigation
into insomnia andprion diseases, and the best-selling
Every Love Story Is a Ghost Story: A Life of David Foster
Wallace. He is currently a GuggenheimFellowatwork
on The Most Conspicuous Person on the Planet. This is
hisfirstpublishedfiction. More: dtmax.com
ContributingEditorJOSHUAPAULisanaward-winning
Brooklyn-based photographer who's shot in more than
eighty countries-for personal projects and clients like
Harvard, Men's Journal, TheNewYorkTimesMagazine,
Outside, and Road & Track, among others. In2013, he
founded the Formula One magazine Lollipop, a lifelong
dream. He's the only permanently accreditedAmerican
photographerinFl. More:joshuapaul.com
ADAM PHILLIPS is theformerprincipal child psychotherapist at Charing Cross Hospital, London, and is now
a psychoanalyst in private practice. Among his many
notable books are On Kissing, Tickling, and Being Bored:
Psychoanalytic Essays on the Unexamined Life;
Terrors and Experts; Monogamy; Darwin's Worms: On
Life Stories and Death Stories; Going Sane; and Missing
Out: In Praise of the U nlived Life. He served as general
editor of the new Penguin Modern Classics translations of
Sigmund Freud. This publication of"Punishing Parents"
marks its first American appearance. It's also available in
6 HECK A.D.2015/16
Phillips's One Way and Another: New and Selected Essays,
published inEngland by Penguin.
Contributing editor ROB RHEE is based in New York and
Seattle. He is an artist and writer and a professor at Cornish
CollegeoftheArts. More:robrhee.com
Contributing editor MIKE SAGER is a best-selling author
and award-winning reporter. He's been called "theBeatpoet
ofAmericanjournalism. "For more than15 years he has
worked as a writer-at-large for Esquire. His story "Dead
Beat" (pg. 20) was written in honor oflegendary journalist
and Washington Post executive editor BenBradlee, who died
in2014 . More: mikesager.com
Contributing editor BOB SHACOCHIS's latest novel,
The Woman Who Lost Her Soul, was afinalistfor the
Pulitzer Prize, won the Dayton Literary Peace Prize, and
appeared on numerous Best Books of the Year lists. His
story collection Easy in the Islands won the National
BookAwardin1985.
Contributing editor GEORGE SINGLETON has published
six collections ofstories, two novels, anda book ofwriting
advice. His fiction has appeared in The Atlantic, Harper's,
Georgia Review, Playboy, Zoetrope, Five Points, and elsewhere. His new collection, Callous town, will be published
inlate 2015. He teaches at Wofford College, in Spartanburg,
South Carolina.
Contributing editor MARTHAANNE TOLL is the
executive director of the Butler Family Fund, a charitable
foundationfocused on abolishing the American death penalty, as well as preventing and ending homelessness. Her
book commentaries andfiction have appeared onNPR, The
Millions, the Tin House blog, Narrative, the Washington
Independent Review of Books, and elsewhere. She is very
grateful toMarcBookman,DirectoroftheAtlantic Center
for CapitalRepresentation, and Pat Clark, Program Officer for the Them is Fund,for book suggestionsfor her essay
"Death&Sentences"(pg.14). More:marthaannetoll .com
A recipient ofGuggenheim, NEA, Stegner, andL'Heureux
fellowships, contributing editor DAVID VANN's awardwinning books include Legend of a Suicide, Caribou
Island, Dirt, Goat Mountain, A Mile Down, and Last Day
on Earth. His work has appeared in The Atlantic Monthly,
Esquire, Outside, Men's Journal, McSweeney's, National
Geographic Adventure, and many other magazines and
newspapers. "Snowmen" (pg. 50) is excerpted from his
latest novel, Aquariuih. More: davidvann .com
AMELIE WELDEN is the author of the novel Rosalind,
Nevada (VirginiaAvenuePress). She has also published a
collection ofbiographiesforyoung readers.