Fri, Sep 29, 2006 page9

• Why is the US turning away from the death penalty? -- Part 2

  In yesterday's edition of the `Taipei Times', Decca Aitkenhead explored the growing success of the anti-death-penalty lobby. Today, Aitkenhead discovers how the lobby must compromise on its rhetoric to win people over to its cause. For one man, however, these efforts did not pay off in time

  • By Decca Aitkenhead / THE GUARDIAN
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  If you look at every single indicator," smiles Dave Elliot, spokesman for the National Coalition to Abolish the Death Penalty (NCADP), "you see that the death penalty is literally withering on the vine."

  One by one, he predicts that more states will impose a moratorium while they try to solve all the flaws in the system. In the process, they'll come to see that those problems just can't be fixed. And then, faced with an intractably unworkable policy, they will simply abandon it.

  "It's not so much a question of whether we will win any more, but when," Elliot claims. "Will it be five years or 15? I'm not sure, but I promise you it will be somewhere between the two. We are on the eve of abolition."

  

  But not everyone in the movement agrees. Some worry that they have been here before. They thought the death penalty was about to be abolished by incremental logic more than 30 years ago. And just look, they say, what happened then.

  In 1972, the Supreme Court declared every state's death penalty statute void. Death sentences were being imposed so arbitrarily, ruled the judges, that they violated the Eighth Amendment.

  "These death sentences are cruel and unusual," one justice famously declared, "in the same way that being struck by lightning is cruel and unusual."

  Jubilant activists assumed it would mean all-out abolition.

  "What else were we to think?" one recalls. "We thought it was all over. We thought we'd won."

  But the court had not declared the death penalty unconstitutional per se. It had merely said it wasn't being administered properly. Almost at once, states began drafting improved statutes, with clearer sentencing guidelines. In 1976, the Supreme Court examined three states' revised protocols and agreed that, yes, all the problems had been fixed. So eager were many other states to start executing again that they recalled their parliaments from summer recess the very next day, just to pass a new death penalty bill.

  Bill Wiseman was a young representative in Oklahoma, one of the states that rushed its legislature back into emergency session. He didn't believe in the death penalty, but he was afraid of losing his seat if he voted against it.

  "I was just having such a happy time being a politician," he smiles sadly. "It was the most fun. And here this damned thing comes along and it has the potential to just crap all over this wonderful time in my life. So I was faced with a decision -- and I was a wuss about it."

  He voted yes.

  "But afterwards I came to the conclusion that if we were going to do the wrong thing, we might as well do it the right way," he says.

  Wiseman set about inventing an alternative to the gas chamber and the electric chair.

  "Something," he winces, "that would be more humane."

  Today, Wiseman is an Anglican priest in a grand old church in downtown Tulsa, Oklahoma. He is more opposed to the death penalty than ever. But he has a wolfish, twinkly smile, and it's easy to picture his ambitious younger self back in 1976, loving the limelight while trying to salve his conscience.

  He describes how the state's medical examiner heard he was looking for ideas, and offered to help. The pair more or less cobbled together a cocktail of intravenous drugs on the back of an envelope. The examiner had no specialist pharmacological training, Wiseman's medical knowledge was zero. But he wrote down what the examiner proposed, called it lethal injection and put it before the house.

  "I was going round like I was some angel of mercy, really starting to believe my own bullshit, when I ran into a reporter friend of mine one day. I was like, `How do you like my bill?' And he just shrugged. It was the very first feeling I had of, `Uh oh.' He said: `Bill, I'm afraid this'll make it too easy for them to pass death sentences.' And on the outside I said: `Oh no, I'm sure that won't happen.' And on the inside I'm going, `Oh God, what if he's right?'

  "So what did I do? Nothing. I was enjoying the momentum and fame and the clips on the Today show too much. Everybody liked me. Hey, I was fixing up the death penalty, wasn't I? I was making it humane."

  More than 30 states soon copied Wiseman's lethal injection bill, many word for word. In 1982, Texas became the first to implement it, with the judge happily predicting that: "1983 will bring some more [executions] ... This humane way will make it more palatable."

  He was not wrong. Wiseman had certainly fixed up the death penalty; his "more palatable" method has now killed more than 800 prisoners. And, he says quietly, he shares responsibility for every single one.

  The dilemma for the anti-death-penalty movement today is obvious. By challenging lethal injection in the courts, they have put a lot of executions on hold. They may force some people to think about what it really means for the state to take a life. If they win, they'll give legislators the disagreeable task of finding another way to carry out an inherently ugly act.

  But to argue that lethal injection is "inhumane" implies the possibility that a humane alternative could exist. For some activists, talk of a humane execution goes hand in hand with demands for a moratorium instead of abolition. It smacks to them of the 1970s all over again, and they don't like it.

  "The parallels with what happened in 1976 are certainly very strong now," an American Civil Liberties Union activist in San Francisco warns. "We need to be very careful not to let the progress we've made slip through our fingers again."

  Mona Cadena, of Amnesty International in California, puts it more bluntly: "Moratorium scares the hell out of me. It opens the door for people to think there's a way to fix the death penalty -- and that's exactly what happened in 1972. The Supreme Court said it's not working. The states changed it. They said it'll work now -- and the court said OK. So we've already tried a moratorium. We should be saying it's not appropriate under any circumstances for the government to choose who is going to live and who is going to die."

  Cadena is the only activist I meet who volunteers a moral objection to the death penalty unprompted.

  "But I get called a super-crazy liberal pinko communist for saying it -- by people in this movement. It's so bizarre. These days I find myself allied with the Catholics just because they're the only abolitionists who'll talk about right and wrong. I think some people feel the moral argument should be left for the churches, and that a moral discussion is not for us," she says.

  The debate between pragmatists and absolutists has been raging within the abolition movement for nearly a decade now. What is quite clear is that the pragmatists have won.

  "The debate is over," the NCADP's Dave Elliot says firmly. "There is no disagreement. The abolition movement has matured."

  He refers to experiments conducted on pro-death-penalty students, which presented arguments framed around flaws in the system. The approach generated significant movement in the students' minds. Arguments framed in morality did not merely fail to change minds, but reinforced the students' original opinions. Elliot drums the table as he spells out the message: "If you address the death penalty as a moral issue, you ... do ... not ... "

  What is less clear is exactly how far this is a matter of purely strategic discipline. It would never have occurred to me to ask activists whether they believed it was wrong to execute anyone; I took it for granted. But then one happened to mention that he thought, in principle, it could sometimes be right. He could definitely think of extreme circumstances in which certain people deserved to be put to death, he said.

  The trouble, he quickly added, was that his "deserving" case would be different from mine, and from the next person's and the next. As we'd never all be able to agree whom to kill, there was no point having a death penalty.

  I put the question to everyone. Could they ever support the death penalty? And with very few exceptions, each answer was essentially the same. Yes -- but only for Hitler. Oh yes, if you knew someone was guilty and irredeemably wicked -- only you could just never be 100 percent sure. Yes, of course, loads of murderers deserve to die -- it's just that you can't trust the state to tell which ones. Yes -- but it's for God to punish them, not the government.

  If this is a tactical position, it is certainly very clever. It gets you off the defensive and opens up space to negotiate. But I'm not sure that everyone did say it for purely tactical reasons. Some of them seemed to mean it.

  "We've brought a lot of people into this movement who seem able to negotiate the thing like that in their own heads. And it's been a huge, huge frustration to me," says Lance Lindsay, who runs Death Penalty Focus in San Francisco, while reflecting on the strange, bittersweet price of the movement's success. "It's focused us on saying `the system's broken' and thinking `if we put in enough reforms, if it ends up just being a few monstrous people who are killed, I can live with that.' To me, that's completely missing the point."

  In the end, the purest articulation of what it should be about comes from the inventor of lethal injection.

  "I'm opposed to the death penalty because of what it does to us -- not what it does to the person who dies," Wiseman says. "That's what it's all about. How it changes and identifies us as a society when we make a corporate decision to take a life. All that stuff about how it's incompetent or unfair, that's all very interesting, but it's not the point. The point is, we must not do this because it eats away at our soul."

  I'd wondered a lot about what it might do to the soul to attend an execution. Whenever I'd pictured it, it was the final statement I dreaded most.

  Eric Allen Patton's execution had been selected at random to witness, so I had no idea what he might want to say. When he opened his mouth to speak, it was obvious he'd thought hard about the words, for he had memorized an entire speech. Mindful of the time limit, he had to rattle through it quickly. And so its impact, in the end, was strangely unaffecting -- like hearing someone recite a shopping list.

  He thanked the prison guards on death row: "They've been like family to me."

  He thanked his legal team for fighting his cause. He thanked the prison warden -- the governor -- for taking care of him, and he thanked his parents for bringing him into the world: "And for loving me, especially through this trying situation."

  His life, Patton said, had been "a blessing and blast," but he was ready to meet Jesus Christ his savior "for now and all eternity."

  At the very end he paused for breath.

  "That's all," he said.

  The drugs are administered by three executioners in the room next door, hidden from view. Only the warden knows their identity; they are not employees but volunteers who answered an advert for the position in the local newspaper. They cannot see the person they are killing and nobody can see them.

  Patton closed his eyes. He let out a deep, noisy breath as the anesthetic entered his veins. As the second drug followed seconds later, paralyzing him, his rib cage slowly stopped rising and falling. The third drug was the one that would kill him -- but by then there was nothing to see. If he did suffer pain, nobody would have known. For eight minutes we all sat there in absolute silence, staring at a frozen body, waiting for him to die.

  Nothing could have looked less like what was actually happening. I kept having to remind myself that I was watching someone being killed -- because none of the evidence would agree. There was no violence, no resistance, not even the appearance of an act of will.

  From the look on everyone's faces you'd think we were witnessing a rather sad but unavoidable law of nature -- not a decision deliberately taken, or one that could have been reversed.

  After a while, the audience's gaze began to wander from the body. Each of us stared into a different private space, as frozen as Patton, like actors arranged on stage into a tableau of human alienation. The old-fashioned black-and-white clock on the wall above Patton's head ticked slowly by, and at 6.11pm a doctor pronounced him dead. The blinds were lowered, everyone got up and we filed out into blazing sunshine.

  Back at the media center, Jerry Massie asked how I'd found it. Surreal, I said. That's funny, he said -- a lot of people tend to use that word. I wanted to say it was traumatic, or horrific, or revolting. But it wouldn't have been true. Had Patton been electrocuted, that would have been traumatic -- to watch him jolt to death, even burst into flames, and have to smell his burning flesh would have been unthinkable. It would have had the merit of seeming real, though, and no one could have walked away lightly.

  But the US justice system has perfected so brilliant a denial of death that the horror of it is how calmly one can watch. In that sense, you could say it really was a humane execution. But the people for whom it has been made humane are the ones carrying it out.

  The media center felt like a TV studio green room after a show is over. Prison staff munched on cookies, the reporters cracked some jokes and somebody gathered up the piles of unused press releases. Massie was disappointed to hear that Patton hadn't apologized for his crime. His expression suggested he found the omission rather rude.
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