Mens et Manus in Prison
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Political Prisoners:
Personalities, Principles, & Politics

The Death Penalty in Theory and Practice
Katha Pollitt

The Nation
March 6, 2000

That the death penalty is applied unequally in this country is beyond dispute — except, unfortunately, in the view of the legal system itself, which dismisses statistics showing that nonwhites convicted of killing whites are vastly overrepresented on death row, and sees nothing amiss with persons accused of capital crimes being represented by lawyers whose only qualification is that they are alive, if not always awake. Lots of people are charged with horrible crimes in the United States, and some of them are even guilty, but the ones who get the death penalty are mostly society's castaways — the ones who can't afford a Dream Team. Of the thirteen condemned men exonerated in Illinois, ten were poor blacks or Latinos.

This fundamental inequity doesn't matter to some death penalty fans — victims' families in search of the ever-elusive "closure"; the Last Marxist's students, who, under the LM's shrewdly Socratic questioning, decided that a ratio of one innocent person executed for every seven guilty ones was a fair price for the deterrent magic of lethal injections. In a New York Times Op-Ed, David Frum, the right-wing ideologue, heaped scorn on death penalty opponents for throwing sand in the machinery of death, thus thwarting the "popular will" and destroying faith in government, as if the sand — writs, appeals, protest campaigns — were not guaranteed us by the Constitution, and as if the Constitution were not also an expression of the will of the people and, at least marginally, a more considered expression of said will than polls, talk radio and drunken yahoos cavorting outside prisons on execution night.

A number of e-mails crossing my screen this past month brought home both the importance of fighting the death penalty on its unfairness case by case and the limits of that strategy. There was a bulletin urging letters to "compassionate conservative" George W. Bush on behalf of Betty Lou Beets, the 62-year-old great-grandmother scheduled to die, as I write, on February 24 for the murder of her fifth husband. Given the Governor's enthusiasm for executions, it would be a miracle worthy of his favorite political philosopher if this campaign were to be successful, but it should be. Twice her death sentence was struck down, only to be reinstated [see "Minority Report," page 9].

Then there's Eugene Colvin-El, next in line on Maryland's death row, a black convicted burglar and heroin addict sentenced to die by an all-white jury for the 1980 murder of an 80-year-old white woman in a burglary. Unless the Supreme Court overturns his sentence, which like Beets's has been set aside twice only to be reinstated, Colvin-El will be the first person in the state executed solely on the basis of circumstantial evidence: no witness, no confession, no evidence placing him at the murder scene. His fingerprint was found on broken panes of glass from a basement door, but the door was blocked and could not have been the point of entry; he was shown to have pawned two cheap watches, but he could have got those elsewhere. Colvin-El's lawyer, who had argued exactly one felony trial in his life, was so ineffective that Colvin-El petitioned the original trial judge, unsuccessfully, to have him taken off the case.

We're hearing a lot now about factual innocence, but death row is full of people like Betty Beets, who did not get a fair trial but who is almost certainly guilty of killing — in fact, two killings (when they found husband number five buried in the garden, they also found husband number four under the patio) — and who, like many on death row, is a deeply damaged person (she tried to blame her children for the killings). As for Colvin-El, it's hard to know what his story was, but the truth is, it shouldn't matter. It's a scandal that a man may be executed on circumstantial evidence after a three-day trial (Beets's was four), but even if he were found guilty beyond a shred of doubt after a vigorous defense by Clarence Darrow, his execution would still be wrong. And it would be wrong even if white burglars who kill 80-year-old black women stood a statistically equal chance of drawing the death card, and if the only women executed really had killed their husbands for the death benefits Beets was wrongly supposed to be after.

Still, people trying to save particular inmates have no choice but to argue their particular cases. That's one reason I don't agree with Marc Cooper's attack (in New York Press and on the Mother Jones website) on the movement to save Mumia Abu-Jamal. Cooper argues that the movement is hero-worshiping, sectarian and obsessed with the case of Mumia and his putative innocence (which Cooper thinks improbable) rather than with the larger issue of the death penalty.

It's true that for a long time the only people who cared about Mumia were Maoists and black nationalists — and good for them, I say — but little by little this supposedly quasi-loony cause has gathered a lot of mainstream support: Amnesty International, the Pope, the International Longshore and Warehouse Union, the pacifist Anabaptists of the Bruderhof Communities, the conservative columnist John Leo (albeit limitedly), not to mention the thousands here and abroad (8,000 in Berlin just a few weeks ago) who regularly turn out for demonstrations. I'm not so sure, either, that it takes away strength from the anti-death penalty movement proper. More likely the reverse: It's introduced to death penalty protest countless young people who would certainly not show up for an ACLU teach-in. As for hard-core political Mumia supporters, why knock their preoccupation with Mumia, a former Black Panther and one of their own, any more than one would knock battered women's advocates for involving themselves in Beets's case or Native Americans for focusing on Leonard Peltier? Their insistence on his innocence may be misguided tactically — if he were guilty, would his trial be less of a travesty, the death sentence less heinous? — but the amazing thing is that the Mumia movement has outgrown its sectarian cradle. Surely that's cause for optimism, not a rebuke! As John Morris, Colvin-El's appeals lawyer, told me when I asked if he believed the Mumia movement drained resources from other cases, "This isn't a zero-sum game. All these cases stand on their own merits, and they all make the same argument: We shouldn't be doing this."

Last modified on Saturday, March 2, 2002 at 10:38:56 PM EST