by Norm Stamper
OFFICER KIMBERLY TONAHILL, THE bottom third of her heart sheared off by a .9mm slug, is dead before she hits the ground. Officer Timothy Ruopp, shot in the legs and in the head, lies mortally wounded in Mercy Hospital. Patrol officers swarm the eucalyptus grove next to the parking lot of Grape Street Park. Police canines sniff their way through the damp brush. A black-and-white SDPD chopper hovers overhead, its blazing light helping in the search for the shooter.
Joselito Cinco, wanted for unlawful possession of a firearm, had bragged to friends, “I’m going to kill the next cop who stops me.” That next cop was Ruopp, an ordained minister with four young children, a shy smile, and a slight lisp. He had stopped Cinco to write him a ticket (for furnishing alcohol to a couple of teenage girls) when the suspect pulled a semiautomatic pistol and opened fire. The cops never had a chance. Both officers’ guns were still holstered when their backup arrived.
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, kid
napping, 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.
But what of “justice” and “closure”? Aren’t they legitimate motives? Of course. But if we had the courage to question why they are so important to us, we might not like the answer.
Could it be that the same hunger for justice and closure that leads to a sanitized killing in a state penitentiary is no different from the motive that leads to unlawful violence on the streets, or in our homes? Domestic violence? Gang shootings? Child abuse? Even road rage? You cut me off on the freeway, hurt or insult one of my homeboys, irritate me while I’m watching the game, you gotta pay. An eye for an eye.
No one epitomizes the avenging angel better than George W. Bush. I’m not talking about his legitimate war in Afghanistan or his indefensible war in Iraq, I’m talking about his war against mercy and justice in Texas. During his reign as a “compassionate conservative” governor, Bush presided over the executions of 152 inmates.
Do you remember the case of Karla Faye Tucker? Convicted of two ax murders, she sought executive clemency, claiming to have undergone a spiritual transformation while incarcerated—understandable for a woman facing imminent death. She also exhibited profound remorse for her crimes (neither argument, if I were a death penalty advocate, would sway me). Bush screwed up his face like a pouty seventh-grader and whiningly mimicked Tucker: “Please don’t kill me.”
Texas did kill Karla Faye Tucker, on February 3, 1998, by lethal injection. She became the first woman executed in that state since the Civil War.*
Even more worrisome than Bush’s callous and juvenile mockery was the governor’s defense of Texas’s killing record. Governor Ryan of Illinois had been haunted by capital punishment, particularly the specter of putting to death an innocent person. Bush had no such qualms, presiding over a state whose police, prosecutors, judges, and juries are certainly no more reliable than those of Illinois. “I’m confident that every person that’s been put to death under our state has been guilty of the crime charged,” he said.
And what was Bush’s process of review before a death sentence was carried out? He would skim a three-page memo the morning of an execution, a memo written by Alberto R. Gonzales, White House counsel whom Bush has appointed as Attorney General for his second term—the man who wrote an internal memo in defense of torture, and a staunch supporter of the death penalty.
If Bush actually read newspapers he might have noticed that the day before his refusal to stop the execution of Gary Graham, the New York Times (June 23, 2000), had this to say: “There is powerful evidence that he did not commit the murder for which the state put him to death.” The editorial continued:
Mr. Graham, represented at trial by a court-appointed lawyer who failed to mount a meaningful defense, was convicted largely on the testimony of a single witness who said she saw him from 30 to 40 feet away through her car windshield. There was no physical evidence linking Mr. Graham to the crime. Tests showed that the gun he was carrying was not the murder weapon, and two other witnesses who were never called to testify at trial said they had seen the killer, and it was not Mr. Graham.
Even when faced with 100 percent “guilty as charged” defendants—criminals who have committed the most heinous crimes—it is still wrong to execute them. Capital punishment makes cowards of its executors. It turns Texas and Arkansas, George W. Bush and Bill Clinton, and the rest of us into a craven nation.
Michael Dukakis lost the 1988 presidential election in part because of his stilted, lawyerly response to Bernard Shaw’s blunt question, “If Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?”
Dukakis replied, “No, I don’t, Bernard. A
nd I think you know that I’ve opposed the death penalty during all of my life. I don’t see any evidence that it’s a deterrent, and I think there are better and more effective ways to deal with violent crime.” A short man, Dukakis stood tall in my eyes when he answered that question.
Where are our national leaders today? Did you hear the death penalty mentioned, even once, in the 2004 presidential or vice presidential debates? Of course not. I wanted as much as anyone to see John Kerry defeat George Bush. But Kerry wasn’t about to “pull a Dukakis,” even though I suspect he harbors strong anti-death penalty sentiments.
Matthew Shepard was pistol-whipped by two gay-hating goons, strapped to a fence, and left to die in a snowy field in Wyoming. After the guilty verdict but before sentencing, Aaron McKinney’s attorney sought to convince the prosecutor that his client should serve two consecutive life sentences rather than face execution. The prosecutor had no intention of agreeing, but he took the offer to Dennis and Judy Shepard, Matthew’s parents. Judy persuaded Dennis, who’d previously supported the death penalty under certain circumstances, to accept the proposal. (Russell Henderson, who’d previously pled guilty, was already serving two consecutive life terms.) The following day, Dennis Shepard stood up in court to explain to the jury why his son’s killer had been spared. He looked right at McKinney:
I would like nothing better than to see you die, Mr. McKinney. However, this is the time to begin the healing process. To show mercy to someone who refused to show any mercy. To use this as the first step in my own closure about losing Matt. Mr. McKinney, I am not doing this because of your family. I am definitely not doing this because of the crass and unwarranted pressures put on by the religious community. If anything, that hardens my resolve to see you die. Mr. McKinney, I’m going to grant you life, as hard as that is for me to do, because of Matthew. Every time you celebrate Christmas, a birthday, or the Fourth of July, remember that Matt isn’t. Every time that you wake up in that prison cell, remember that you had the opportunity and the ability to stop your actions that night. Every time that you see your cellmate, remember that you had a choice, and now you are living that choice. You robbed me of something very precious, and I will never forgive you for that. Mr. McKinney, I give you life in the memory of one who no longer lives. May you have a long life, and may you thank Matthew every day for it.