photo courtesy the Federal Bureau of Prisons
For four and a half years, just as I was transitioning from childhood to adult citizenship, I lived in a country – the USA – that did not have the death penalty. I hope to live in that country again someday.
Progress toward my goal has been halting and uneven. We took a serious step backward this week when the federal government carried out its first execution in 17 years. In the wee hours of the morning Tuesday, a 5-4 Supreme Court majority cleared the last roadblock to the imposition of capital punishment on Daniel Lewis Lee.
Lee was dead within hours. Until the end, he protested that he was innocent of the 1996 killings of an Arkansas couple and their 8-year-old daughter for which he was being executed. He was put down with an injection of pentobarbital, just as a veterinarian would do to a terminally ill pet.
On the last day of its 1971-72 term, the Supreme Court struck down the death penalty as it was then applied across the country. That, too, was a 5-4 vote that created a fractured set of opinions. Only Justices William Brennan and Thurgood Marshall asserted then what I firmly believe now, which is that the death penalty in all circumstances violates the Constitution’s promise of equal protection and its ban on cruel and unusual punishment. I was 14 when the court issued its ruling in Furman v. Georgia.
In its wake, 37 states hastened to recast their capital punishment statutes. I remember the morning in January 1977 when a Utah firing squad executed Gary Gilmore at his own request, restoring the death penalty to American jurisprudence. I recall being in the newsroom of my college paper, 500 miles north in Montana, and wondering when capital punishment would be successfully challenged again.
Ever since, states and the federal government have tinkered with the formulae and methodology of state-sponsored ritual killing to preserve it. Nevertheless, courts, legislatures and occasionally governors have gradually narrowed both the grounds on which the death penalty can be imposed and the ground on which it can be carried out. Today, exactly half the states have eliminated capital punishment and the federal government had put its own death machinery into neutral gear. Until now.
Yet as the French like to say, the more things change the more they stay the same. There were still only two justices on the court – Stephen Breyer and Ruth Bader Ginsburg – who were prepared to say, in Tuesday’s predawn ruling, that the death penalty is unconstitutional, period. The court’s five conservatives stood aside to let the gears of justice grind Daniel Lewis Lee’s life into history. Justices Sonia Sotomayor and Elena Kagan objected to the midnight exercise mainly on procedural grounds, on which Ginsburg also joined.
So, as the dawn’s early light reached the federal penitentiary at Terre Haute, Indiana, Lee, age 47, was put to death under peculiar circumstances. First, he was killed for a crime in which his co-defendant received a sentence of life in prison. Second, he was killed for a crime that occurred 24 years ago and for which he was convicted 21 years ago. Third, he was killed after the mother of one of his victims called for his sentence to be commuted to life in prison, while other relatives of the victims sought a stay of execution because they did not want to attend the event during the coronavirus pandemic. Fourth, Lee – whom prosecutors described as a white supremacist – was put to death at a moment when it is hard to imagine a Black person being executed in the midst of the #blacklivesmatter movement. This irony of a man being exposed to execution because he is not Black must be seen against the long history of capital punishment disproportionately applied to Black defendants convicted of crimes against white victims.
In fact, the next three federal inmates scheduled to be executed behind Lee are all white. As I wrote this post, Wesley Ira Purkey was scheduled to be executed Wednesday, Dustin Lee Honken’s execution was set for Friday, and Keith Dwayne Nelson was slated to be put to death next month. Yesterday, a district court judge granted a preliminary injunction to delay Purkey's death, but the Supreme Court overturned it early this morning. Purkey, like Lee, was executed hours after the Supreme Court cleared the way.
If Honken and Nelson were Black, chances are they would not be facing death right now. If Lee and Purkey were Black, they would likely not have died this week. It is worth noting, however, that if these four men were Black, they might well have been executed even earlier. It is reasonable to suspect that the push to move ahead with their executions is meant as much to make a political point in favor of capital punishment as to carry out justice in their specific cases.
All of these death row inmates – like Lee – were convicted of heinous crimes. Objecting to their execution should not minimize the depravity of the actions of which they were accused or the suffering of their victims. It should not suggest any view at all on the inmates’ culpability. We should still acknowledge that many equally heinous crimes are punished without the death penalty, including instances like Lee’s, where the punishments meted out to defendants for the same crime are different.
In the end, chance as much as culpability determines who lives behind bars and who dies at the hands of the state while strapped to a gurney. The years spent awaiting the executioner torture the inmates; the spectacle and memory of their demise tortures their survivors. Whatever its constitutional merits in an earlier point in American history – when punishment was delivered much more swiftly, if not more surely – capital punishment has nothing to recommend itself now beyond pure politics and a lust for vengeance. And when it is wrongly imposed, that wrong is unrightable.
I understand why the Supreme Court’s conservatives believe this question of policy, like most others, should be settled in the political branches. Often I agree with them; this time, I assuredly do not. The courts themselves are the instrument and perpetrators of this ritualized killing. They have every right, and I believe a constitutional responsibility, to end it.
I came of age in a country without the death penalty. I hope to survive long enough to know that I got that country back.
EDITOR'S NOTE: This post was updated after publication to reflect the news of Wesley Ira Purkey's execution.