Sarah Wright: Making a case against the federal death penalty

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Thirty-five years ago, I exchanged a series of letters with Billy Neal Moore, my death row pen pal when I was preparing for confirmation. The progressive parish of my adolescence had a robust social justice program that encouraged soup kitchen visits to feed the homeless in New Haven and civil disobedience at the General Dynamics shipyard in Groton, where nuclear submarines are made. An annual trip to Appalachian Kentucky opened my eyes to rural poverty that shoreline Connecticut's affluence obscures.

I came to correspond with Mr. Moore because St. George's youth ministers were quite connected to the Agape Community, a lay Catholic community co-founded in 1982 by Brayton and Suzanne Shanley. Situated on 34 acres near the Quabbin Reservoir, the Shanleys'prison work includes advocacy for death row inmates, which Moore was himself for almost 17 years in the state of Georgia. He killed someone; he admitted the crime and apologized for it; then the victim's family not only forgave him, they became his strongest advocates for release. One of the best summaries of Moore's story is a piece by Clive Stafford Smith in the Times Literary Supplement two years ago with the headline "God, guns and guts"; there are many others written by a coterie of excellent journalists.

What prompted me to call Moore recently was the killing of Daniel Lewis Lee in the wee hours of July 14, preceded by a 5-4 Supreme Court decision rejecting a challenge to the sentence. It was the first federal execution since 2003.

While on Georgia's death row last century, Moore came very close to dying by electrocution, a means of inflicting death that has been largely abandoned today, reflecting a growing national consensus that its barbarity is unacceptable in a civilized nation.

The Eighth Amendment to the United States Constitution protects convicts from "cruel and unusual punishments." While the Supreme Court has never held that the death penalty is per se unconstitutional, it has chipped away at it in recent years, ruling, for example, that children and the mentally disabled may not be executed. And, while the court is often called upon to address the means of execution in many last-minute applications for orders to halt executions, the court has never ruled that a state's intended method of execution violates the Eighth Amendment.

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In Massachusetts, the death penalty was abolished in 1984, following the Supreme Judicial Court's ruling that it was unfairly administered: Only defendants who were found guilty at trial were eligible; those who pleaded guilty were exempt. But that ruling does not abolish the death penalty in federal cases, even in Massachusetts.

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It's past time to abolish the death penalty nationwide. First, the state's function is to provide for the protection of the public welfare, not to exact the ultimate eye-for-an-eye retributive justice. The state should simply not be in the business of killing people. Two wrongs do not make a right, and killing the perpetrator will not bring the victim back to life.

Second, we are still a very long way from error-proof convictions. The criminal courts in this country afford lots of process to criminal defendants both at trial and post-trial, but that process does not ensure accurate outcomes. Many convictions still rest on shaky or bogus pseudo-scientific forensic evidence. Others rest on biased or inaccurate eyewitness testimony. Witnesses, including the police, can lie. Prosecutors can commit misconduct and defense lawyers can drop the ball. Juries are fallible — and so are the courts. The appellate process, while elaborate and costly, does not ensure accuracy of outcomes. Errors are easily waived; they are missed and discounted.

Third, as the United Nations and the American Civil Liberties Union have recognized, poor people and racial minorities are disproportionately affected by this error-prone system. Because this disparate impact arises from many sources, it is virtually impossible to ensure equal treatment.

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And, finally, the more we know about the physiology of death, the clearer it is that the risk of botched and painful executions is intolerably high, even with seemingly anesthetic lethal injection.

In the 1957 Supreme Court case Trop v. Dulles, Chief Justice Earl Warren's decision noted "the evolving standards of decency that mark the progress of a maturing society." It is time for the nation as a whole to recognize that this cornerstone of the Eighth Amendment's prohibition against cruel and unusual punishment should no longer allow the government to exact the ultimate revenge.

When I asked Mr. Moore what advice he'd have for the men who are scheduled to after the resumption of federal executions, he said: "Prayer — be as strong as possible. You have to be focused on your emotions. If not, the situation of the death penalty will swallow you up. And you can't give in to what the government is doing."

Sarah Wright, of Lee, is a writer and a social worker. Jeanne M. Kempthorne, of Pittsfield, a former federal and state prosecutor and criminal appellate defense lawyer, contributed to and co-signed this piece.


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