Deep thoughts from San Antonio

This past weekend, I had the opportunity to attend the annual conference of the Texas Coalition to Abolish the Death Penalty in San Antonio. I have lots of stuff to blog on from this conference. But first, I’m going to give quite a bit of space to David Dow, one of the smartest lawyers among those who represent people on death row.

For those of you who follow this blog very closely, I've written about Dow several times in the past. He is author of the book "Executed on a Technicality: Lethal Injustice on America's Death Row." If you have not read this book -- and, c'mon, I know 99 percent of you have not -- please, please, please go here and purchase it right now -- your life might well change.

Dow is a distinguished professor at the University of Houston Law Center. He also is head of the Texas Innocence Project and has represented a number of people on Texas’ death row during their final legal appeals. Last weekend, Dow gave the keynote address at the TCADP awards banquet. It was entitled, “Is Mercy the Enemy of Justice?”

You can read the entire speech by going here and I hope that you will. Meanwhile, although excerpting the speech almost seems unfair, I do it out of necessity. (This is a “web log” after all!) In brief, Dow makes two points that every abolitionist should consider. I leave David to his words:

….
The title of my talk this afternoon is “Is Mercy the Enemy of Justice?” I mean, by asking this question, to be exploring the issue of whether someone who opposes the execution of an admitted murderer is showing mercy at the expense of doing justice.

You can probably guess that my answer to this question will be “no,” but the mere fact that we can ask it signals something important, I think. Death penalty opponents are often accused by death penalty supporters as being indifferent to the
victims of murder and their loved ones, of preferring mercy for the murderer to
justice for the murdered. Is this a legitimate claim?

If we hope to see the end of capital punishment in America, we must be able to answer this charge persuasively. I do not doubt that we will prevail, but I would
prefer that the day come sooner, rather than later. What I would like to do this afternoon, therefore, is to propose two tactics that the abolitionist movement should embrace in order to hasten the day that we no longer execute.

….

Number 1: Do not attempt to appropriate the mantle of innocence.

If the death penalty is immoral, as I believe it is, either in theory or in practice, it has nothing to do with the issue of innocence.

Of the execution victims I have mentioned today, only three – Williams in California and Graham and Newton in Texas – protested their innocence. Like any death penalty lawyer, I have clients about whose guilt I harbor grave doubts. And, again like any lawyer who has clients she believes to be innocent, I do what I can to show that they are not guilty. But we do not want to have a contest with a death penalty
supporter over whose list of innocent victims is longer, because we lose that
contest seven days a week.

Only a fraction of the residents of death row are innocent, but the victim of a murder is always innocent. Clay Peterson, who was killed by my client Johnny Joe Martinez, was innocent and should not have died when he did. The same is true of Ed Thompson, who was killed by my client Carl Johnson, and DPS Trooper Bill Davidson, who was killed by my client Ronald Howard. Earlier in my talk and now, I am telling you who they are. These innocent victims of murder are not my enemy, and they are not our antagonist. We alienate their loved ones when we do not know
their names.
….

A murderer and a murder victim – my typical client and his victim – are both human beings, but they have not acted in morally equivalent fashion. Someone who does not murder, I believe, is morally superior to someone who does. My clients know this, too, and many have told me so. I do not think my clients should be executed, but those of them that have committed murder are not morally equal to their innocent victims. By representing death row inmates, I am not saying that they are.

In saying this, I think I am saying what many in the abolitionist community already say, and so I am not proposing a radical idea. What I am suggesting is that this truth be loudly acknowledged. I think this truth was embraced in Helen Prejean’s first
book, Dead Man Walking, and even more so in the film adaptation of the book. But in recent years, the abolitionist movement has, for tactical reasons, begun calling attention to innocent people on death row, and to innocent people who might have been executed.

There has undoubtedly been some political value in this emphasis. But most people on death row are not innocent, and the excessive attention that this issue has received has crowded out the moral question of whether the state ought to kill. It has crowded out the fact that we have a system that favors the rich over the poor, and the white over the black and brown. It has crowded out the fact that constitutional violations mar virtually every case. The excessive focus on innocence has allowed some people to say that if we can just tweak the system to protect against error, then the machinery of death will have been repaired.

Executing someone who is innocent is wrong, but it is no more wrong that executing someone because of his skin color or the thickness of his wallet or the mistakes of his lawyers. I believe that we as a community have not succeeded in making that point.
….

Now I want to turn to a second suggestion: We must do a better job of explaining that opposing an execution is not remotely tantamount to forgiving a murder.

In May 2002, several weeks before my client Johnny Martinez was executed, he sat down with the mother of the young man he killed, a woman named Lana Norris, and he apologized to her. Ms. Norris asked him questions that had been festering inside her for years, and she later wrote to Governor Perry and the mostly feckless members of the Board of Pardons and Parole and begged for his life to be spared. She told them that she did not want his mother to have to go through what she had gone through. She did not want another mother to suffer the loss of a son. By a vote of 18 to 7, they ignored her, and Martinez died as his siblings watched.

When I see family members of murder victims in the courtroom or on the street, or when I debate death penalty supporters, the one question I am asked, more than all
other questions combined, is what I would want to happen to the murderer if the
victim was my mother or father, my brother or friend, my wife or my son. I say the same thing every time I am asked: I do not know what I would want if my loved one were killed. I do not know if I would be like my friends Renny Cushing and Robert Hoelscher and oppose the execution anyway. I do not know what I would want because I might, confronted with the loss of a loved one, feel the pull of vengeance more than the pull of mercy. If I were to lose a loved one, I might be indifferent to mercy. Someone who loses a loved one to murder has a right to feel the tug of vengeance. But the state, and our law, has no such entitlement.

In his essay entitled Justice and Mercy, the philosopher Ahad Ha’am says that the
difference between justice and mercy is that “Justice regards only the character of the deed, and judges the doer accordingly; Mercy considers first the character of the doer at the moment of the deed, and judges the deed accordingly.”

The Constitution does not use the word “mercy.” It does, however, prohibit punishments that are cruel and unusual. Both the religious and secular authorities upon which this nation’s laws are based lead to only one conclusion: that indifference to mercy is unconstitutionally cruel, and morally unsound.

In modern law and morality, the character of the wrongdoer is supposed to matter.
But we have deviated far from this ideal. Karla Faye Tucker’s character did not matter, nor did that of James Allridge, nor did that of Frances Newton, nor did that of Johnny Martinez, nor did that if Stanley Williams, nor did that of the any of more than 1,000 men and women we as a nation have put to death. How has this state of affairs come to be?

The answer, I think, is that we have permitted the concept of “mercy” to become
confused with indifference to murder; we have allowed our critics to conclude
that because we believe in mercy, that we also believe in moral equivalence.

We must correct that message. Mercy does not mean that society forgives the murder, and it is not our prerogative to forgive someone who murders another. That privilege belongs to people like Lana Norris, to the murder victim’s loved ones, not to us.

We are unfaithful to law when we cease to recoil at murder, when we neglect to condemn this horrible act. We are just as unfaithful when, in reacting to this worst of all crimes, we purge our law of mercy.

* * * * *

I will close with this thought. In her wonderful book Gilead, Marilyn Robinson says that remembering and forgiving can be contrary things.[iii] She is right. They can be. It can seem that by sparing the life of a murderer, we are forgetting the murder
victim. It can seem that we are trivializing the murder. But it is not always so; it is not necessarily so. We can remember the horror of a murder, and also think that the murderer should be spared. Our job as abolitionists is to show why that is true and how it can be.

As a lawyer who represents death row inmates, it is not my prerogative, to forgive them for what they have done. I have seen the facts and the photos of many bloody crime scenes. I know that murders range from the heinous and cruel to the indescribably detestable and vile. There are no ordinary murders. Every murder ends a human life and leaves others in tatters. Abolitionists must acknowledge that truth, and I want the victims of my clients to know that I believe it, too.

We must say as a community that we know that murder is wrong; and we must say,
simultaneously and just as loudly, that our death penalty regime is unjust, and that it is wrong for us, for our nation and our state, to kill.

Wow.