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."
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