Ultimate Punishment (9 page)

W
HEN I'D GONE DOWN TO TAMMS
with Matt Bettenhausen and Nancy Miller and met Henry Brisbon, I'd had a subordinate reason for making the trip: Illinois' execution chamber is now located there. Unused for more than two years because of Governor Ryan's moratorium, it remains an irretrievably solemn spot, with the sterile feel of an operating theater in a hospital, replete with stainless steel tables and the blank window of an observation gallery. The execution gurney where the lethal injection is administered is covered in a starched sheet and might even be mistaken for an examining table, but for the arm paddles that extend from it, and the criss-crossing leather restraints that strike a particularly odd note in the world of Tamms, where virtually all other materials are steel, concrete, and plastic.

Several years ago, I attended a luncheon where Sister Helen Prejean, author of
Dead Man Walking
, delivered the keynote address. The daughter of a prominent New Orleans lawyer, Sister Helen is a powerful orator in her own right. Inveighing against the death penalty, she looked at the audience and repeated one of her favorite arguments: “If you really believe in the death penalty, ask yourself if you're willing to inject the fatal poison.”

Standing in the death chamber at Tamms, I had Sister Helen in mind. It is an illusion to think that jailers themselves don't find an execution deeply unsettling. George Welborn pointed out that one advantage of having the execution chamber at Tamms, away from the vast majority of death row inmates, is that it avoids asking correctional officers to help terminate the life of someone they have lived with every day, albeit in the relationship of guard and guarded. When we discussed the possible outcomes of the Commission's work, George, who had presided over lethal injections before the moratorium, looked at all of us and said, “If I don't have to do another execution ever again, that's fine with me.”

We went from the death chamber to the cell of Ike Easley, a former gang leader who received a capital sentence for performing a revenge killing on a correctional officer. Easley is not a letter from home. The evidence at his sentencing hearing years ago showed that while imprisoned he had six reports for assault, thirty for insolence or threats, fifty-two for disobeying orders, sixty-four for unauthorized movement, three for gang activity, four for dangerous contraband, and two for drugs and paraphernalia. But standing behind the punch plate of his cell, Easley seemed slow-witted and eager to please. Even knowing his record, I was struck by the cruelty of executing someone like this, who has been rendered docile and subdued. The horror of a cool, contemplated end to the life of another human being, especially in the name of the law, is profound.

And yet, if it were Gacy, the murderer of thirty-some young men, on that gurney, if circumstance had put me in George Welborn's position, I could, as Sister Helen would have it, push the button. After two years of solemn contemplation, I won't pretend that I think the death penalty is the product of an alien morality, or that I can't respect the considered judgment of the greater portion of my fellow citizens that it ought to be imposed on the most horrific crimes.

Recognizing that capital punishment still commands a political majority in Illinois, the Commission proceeded on the assumption that the death penalty would continue, and confined our formal recommendations to prospective reforms. Yet, as Senator Simon promised he would do from the start, he nonetheless called on us as thoughtful persons who had now studied this issue at length to give the people of the state of Illinois our best advice, as an expression of sentiment rather than a formal proposal. Should capital punishment continue to be imposed in Illinois? On a day late in the fall of 2001, as we were preparing for a dinner with the Governor at the Executive Mansion in Springfield, Paul called the question and asked for a vote. A majority said no to capital punishment. A number of the Commission members who had been unwilling to declare themselves opponents of death penalty when we started, had, after two years of digesting cases and research, crossed that fateful Rubicon to say they were against killing killers. Some had moral objections. Some thought the death penalty was a waste of scarce resources. Some thought that the proposals we'd made, which were essential to true reform, would never be fully adopted by the Illinois General Assembly and that abolition was the only sensible alternative, as a result.

Although the ebb and flow of American opinion about capital punishment will continue for decades, I suspect that the death penalty will eventually be abolished in this country. The world community seems intent on shaming us for adhering to a practice it regards as savage, and as globalization proceeds, those opinions are likely to count for more here. Indeed, there are even increasing numbers of conservatives with growing doubts, calling capital punishment one more government program that has failed, or blaming death penalty opponents for making the process so time-consuming and expensive that it is not worth the struggle.

But it is not political consensus that is likely to take us to abolition. I expect Americans—and their politicians—to remain in conflict, provoked by individual cases and reluctant to focus on the actual output of the system as a whole. Their hesitation to fix what is fixable in our capital schemes will force the ultimate judgments into the courts. The incremental approach the U.S. Supreme Court has favored for the last twenty-five years, creating strict procedural hurdles to death sentences and declaring the death penalty unconstitutional in more and more settings—when applied to the mentally retarded; when decided, after a verdict, by a judge—will eventually stretch the fabric of the law to the point that it is too much of a patchwork to be regarded as a work of reason. Because of this, there may be intervals when the Court attempts to tamper no further with capital punishment. But the gross inequities that these extreme cases routinely seem to produce will not allow the Court to keep its distance forever. While the framers clearly accepted death as a permissible punishment, they also accepted slavery and the chattelizing of women. Times change. Eventually, I expect the Court to conclude that capital punishment and the promise of due process of law are incompatible.

I admit I am still attracted to a death penalty that would be available for the crimes of unimaginable dimensions like Gacy's, or that would fully eliminate the marginal risks that incorrigible monsters like Brisbon might ever again satisfy their vampire appetites. But if my time on the Commission taught me one lesson, it was that I was approaching the question of capital punishment the wrong way. There will always be cases that cry out to me for ultimate punishment. That is not the true issue. The pivotal question instead is whether a system of justice can be constructed that reaches only the rare, right cases, without also occasionally condemning the innocent or the undeserving.

Thus, for me, at the end of the day, the question is which mistake I prefer to see made by this system that has long symbolized our moral instincts as a nation. Allowing Gacy or Brisbon to live is infuriating, even shaming when the law must tell the survivors that their taxes will help finance the continued existence of such men. But the furious heat of grief and rage the worst cases inspire will inevitably short-circuit our judgment and always be a snare for the innocent. And the fundamental equality of each survivor's loss, and the manner in which the wayward imaginations of criminals continue to surprise us, will inevitably cause the categories for death eligibility to expand, a slippery slope of what-about-hims. After twenty-five years of attempting to establish laser-like guidelines, we still end up with a moral hodgepodge where Chris Thomas is condemned to die because he is poor and belligerent, while the likes of the Menendez brothers, who shotgunned their parents for their millions, or the Unabomber, who killed and maimed and threatened the nation for years, get life. In yet another of the perpetual paradoxes in this subject, retaining the death penalty seems to be a road to breeding disrespect for the law, because it exposes so many of its shortcomings.

One reason our capital jurisprudence is such a mess is because even the justices of the U.S. Supreme Court, who have long experience in making and sticking with hard decisions, have waffled. Harry Blackmun is hardly alone. In the last twenty-five years, Justices Stewart, White, Powell, and Stevens have also taken varying positions when confronted with the question of whether or not capital punishment as currently practiced is constitutionally tolerable. I take myself as no better than they. Long after that day in fall 2001, when Senator Simon called upon us all to offer a definitive judgment on the death penalty, a number of my fellow commissioners revised their positions. But I appear to have finally come to rest on the issue. Today, I would still do as I did when Paul Simon asked whether Illinois should retain capital punishment. I voted no.