Breaking Rank (13 page)

I ride with the police chief to Tonahill's mother's house to tell the woman she no longer has a daughter. Kim and Tim had worked for me; I was their deputy chief. I'm sick to my stomach, seething with anger, hoping our cops find Cinco soon. And praying he'll give them a reason to blow him away.

But, if he's caught, tried, convicted? What then? Should the state kill him?

No.

When I read of yet another execution, most often these days in Texas, when I picture the actual occurrence—the frying, gassing, hanging, shooting, or lethal injection of a human being—my soul hurts for days. It's an emotional thing with me, but my opposition to capital punishment is multilayered.

Race and class discrimination are all too real in every phase of the criminal justice system, from arrest to sentencing. Impoverished black defendants are far more likely to wind up on death row than rich or middle-class whites. Of the 3,700 inmates now awaiting execution nationwide, 43 percent are African-American. Black defendants are not accorded the same due process rights as whites, their cases are not given the same scrutiny and consideration afforded white defendants. Not now, not ever, not in this country. Governor George Ryan first suspended then commuted the sentences of all death row inmates in Illinois because he was shown proof (most of it DNA driven) that several prisoners—as many as
twelve
of the eighteen—simply weren't guilty.

The Innocence Project, founded by Barry C. Scheck and Peter J. Neufield in 1992 at the Benjamin N. Cardozo School of Law at Yeshiva University, accepts only cases “where postconviction DNA testing can yield conclusive proof of innocence.” Of their first 123 exonerations, 37 were for homicides. One of those cases involved Eddie Joe Lloyd, a black, mentally retarded man convicted of the brutal killing of a sixteen-year-old girl in 1984. Mr. Lloyd served seventeen years in a Michigan state prison before the Innocence Project, joined by the Wayne County Prosecutor and the Detroit Police Department, petitioned to have his sentence vacated. Evidence developed by the Project revealed that although the police had all kinds of physical evidence at the scene, including the killer's semen, they'd never had it analyzed. Further, they told Lloyd that if he played along with his arrest they might be able to flush out the real killer. Lloyd did “play along,” signing a confession the cops had fed him. The judge in his case, barred from imposing a death sentence, had wanted to hang Lloyd, to face “termination by extreme con[striction].”

Mentally incompetent defendants—some with sub-50 IQs, some (like self-lobotomized Rickey Ray Rector, executed in Arkansas under Governor Bill Clinton) with the mentality of a
six-year-old
—are still put to death in this country. Those with mental retardation are incapable of informed participation in their own defense, and they are far more likely to make false confessions. The U.S. Supreme Court in November 2002 stayed the execution of James Colburn, forty-two, who had started seeing a psychiatrist when he was fourteen and who was diagnosed as a paranoid schizophrenic
at seventeen. Colburn, a Texan who killed a woman he'd attempted to rape, was out of his mind on psychotropic drugs at his trial. It would have been “cruel and unusual punishment,” said the court, to execute such a transparently incompetent person. They sent the case back to Texas where a state doctor, who agreed Colburn was mentally disturbed, opined that the man was sane enough to stand trial. Convicted and sentenced once again to death, the execution was carried out in March 2003. On death row Colburn was known as “Shaky” because of the tremors in his hands and body. He ate his own feces, drank his own urine. Even the warden was said to be distressed over the execution.

Prosecutions of capital cases, often waged against fundamentally unfit court-appointed defense attorneys, frequently rely on unreliable witnesses, shoddy police work, questionable forensics, and jailhouse snitches. Two federal court judges, an appeals court panel, and a Los Angeles superior court judge ruled recently that Lee Goldstein had been wrongly convicted of murder on the basis of testimony from a jailhouse snitch—twenty years ago. Goldstein is fifty-five now.

The death penalty is inefficient and extravagantly expensive: prosecuting and publicly defending a capital case—through up to eleven years of appeals—can cost taxpayers into the eight figures, plus an additional $2 million for the execution. The average cost of incarceration for one inmate on death row is $22,265 a year ($61 a day) at a maximum security facility. The average time an inmate spends on death row (before he or she is executed, released, or remanded for a new trial) is 10.43 years. That comes to a grand total of $233,000.

If these aren't reasons enough to do away with the death penalty, this ought to be persuasive: according to the Innocence Project, as of 2003, 132 people sentenced to death had been exonerated—in other words,
they didn't do it.
Experts aren't sure how many innocent people have actually been executed, but few would disagree that one is too many.

Some argue that the death penalty is wrong not because of what it does to the person we execute, whether guilty or innocent, but because of what it does to the rest of us. Bud Welch, who lost his daughter Julie Marie in the April 19, 1995, Oklahoma City bombing, told CNN News, “I'm not going to find any healing by taking Tim McVeigh out of his cage to kill him. It
will not bring my little girl back.” Welch became a board member of Murder Victims' Families for Reconciliation, an organization headed by Renny Cushing of Hampton, New Hampshire. Cushing's father had been killed by a police officer in 1988. He says that most loved ones of homicide victims have three basic needs: to learn the truth about what happened, to receive assurances that the killer will be held accountable, and to be allowed to heal in their own time, in their own way. Executions, he says, produce a “carnival-like” atmosphere and shift attention from the victim to the killer. “For those of us who know the pain of the graveyard, filling up another coffin does not bring any comfort.”

A friend in San Diego called me with a remarkable story from my old hometown. Nineteen-year-old Tariq Khamisa, delivering pizzas one night in 1996, was gunned down by a gangbanger. His father, Azim Khamisa, reached out to the fourteen-year-old shooter's family. Together they formed a foundation in Tariq's name to try to prevent youth violence. Khamisa had been devastated by his son's death. He told a reporter, “I know the pain of losing a child. It's like having a nuclear bomb detonate inside your body, breaking you into millions of small pieces that can never be found. This violence scars the soul forever.” But he also believes that “forgiveness is a surer way to peace than an eye for an eye. The more we role-model the death penalty, the more violence and revenge there will be.”

These are all good arguments for opposing capital punishment but my main objection is this: It's the coward's way out. How can we justify killing someone whose threat has ended with incarceration? In my mind it's an extension of the mentality of child abusers who know their victims can't fight back. Or of a cop who beats a handcuffed prisoner. I've felt this way since my second year as a police officer, back in the mid-sixties.

And before that? I was sixteen when Caryl Chessman was gassed to death at San Quentin. I remember reading about his crime spree: auto theft, kidnapping, robbery, rape (he was the notorious Los Angeles “Red Light Bandit,” so named because he pretended to be a cop, stopping cars with a
red light). I also remember newspaper accounts of his eight stays of execution during his twelve years on death row; his was the longest period any convict had spent on death row at that time. The governor, the warden, and a panel of judges were bombarded by appeals from general death penalty opponents as well as those who felt Chessman, in particular, did not deserve to die. Ray Bradbury, Pablo Casals, Robert Frost, Billy Graham, Aldous Huxley, Norman Mailer, Carey McWilliams, and Eleanor Roosevelt wrote letters urging that Chessman's life be spared. Steve Allen, Marlon Brando, and Shirley MacLaine were said to be among the protesters present on the day of his execution. I remember feeling strange that morning, like the whole thing was a little unreal.

For all his horrible crimes, Chessman did not murder anyone. In prison, he was clearly not a threat to others (at least in the free world; he once stuck a pencil into the cheek of a fellow inmate). Why did “they” have to kill him? Why had Governor Edmund G. “Pat” Brown, a death penalty opponent, not intervened—even after his Jesuit-trained son, Jerry Brown, called from Berkeley begging him to do so?

But the governor refused, and a bag of cyanide pellets was dropped into a vat of sulphuric acid under Chessman's death chair at 10:03
A.M
. on May 2, 1960. Chessman took a deep breath when the pellets were released at 10:03. Seconds later his nose twitched, and his head dropped to his chest. He vomited up part of his ham and eggs breakfast. His bowels and bladder gave way. At 10:12 he was declared dead.

I guess you could say that when I was sworn in as a cop I was against the death penalty, sort of. I don't remember thinking about it a whole lot. But in my rookie year, sporting a blue “Reagan for Governor” bumper sticker on my Pontiac Tempest sedan and loving everything about police work and the cop culture, I became an ardent proponent of capital punishment. Just like my buddies in tan. My taste for state killings lasted as long as my love affair with Ronald Reagan. When I decided to think, and feel, for myself, I scraped off the bumper sticker. And returned, for good, to my roots as a death penalty opponent.

I'm not a pacifist. I've killed a man and I would kill again, if I had to. But violence does beget violence, and state and federal executions have not kept the United States from becoming one of the most violent industrialized nations on the planet. Our retention of capital punishment (in most states) puts us in the company of China, North Korea, Rwanda, Iraq, and Iran. Half the nations of the world, including all fifteen members of the European Union, have outlawed capital punishment. So have a dozen of our own states—one, Michigan, from as far back as 1846.

I understand why my colleagues celebrate the same image I abhor, and why Americans support capital punishment.
*
They believe it acts as a deterrent. They believe in the biblical notion of “an eye for an eye” (although apparently not in the commandment, Thou shalt not kill). They believe a death sentence carried out brings “closure” to surviving loved ones; my cop colleagues
needed
Joselito Cinco to die in the gas chamber, if not in that canyon.

Over the years I've questioned my beliefs and assumptions about the death penalty. I confess to moments when my gut tells me,
This asshole's the exception—take him out and kill him
. The cases are not difficult to conjure—baby killers, wife killers, serial killers, terrorists, treasonous FBI or CIA agents. Cop killers. The unremorseful: stoic murderers, laughing killers with no trace of a conscience—like an impenitent Gary Ridgway here in Washington state, the most prolific serial killer in U.S. history.

Yet the rational case for capital punishment is flawed. True, the execution of a murderer means that he or she will never kill again. But a person bent on homicide—whether impassioned impulse or premeditated—is not likely to be dissuaded by what might await him or her at the end of a long, drawn-out criminal justice proceeding. If capital punishment were a deterrent you'd think our murder rate (between 15,000 and 20,000 killings a year) would be among the lowest in the civilized world. Instead of the sixth highest.

According to the
New York Times
, the twelve states that have abolished
the death penalty boast average homicide rates consistently lower than in those states that execute their killers. A twenty-year, state-by-state analysis revealed that ten of those twelve states have homicide rates lower than the national average.