Two weeks ago attorneys for Donald Fell, the first person sentenced to death in Vermont in 50 years, brought an appeal to save his life. Last week, Rachel Lawler, a Woodbury College pre-law student, was convicted of holding a banner reading “Stop Executions” on the steps of the U.S. Supreme Court.
These events made me think about why Americans continue to champion a policy that most of the world finds repugnant and most countries have abolished. In spite of a recent waning, America’s attachment to the death penalty remains fierce. How can our nation be turned around? Will emotional arguments change minds? Will rational arguments soften hearts?
It is hard to forget Donald Fell’s crime. On a late-November night in 2000, after killing his mother and her companion, Fell and accomplice Robert Lee jacked a car from a Rutland parking lot with its owner, supermarket worker Terry King, in it. Their hellish ride ended in a field in New York State, where the two men bashed King, 53, to death with a stone. When she died, she was on her knees, praying.
The death penalty is illegal in Vermont. But because the men drove their victim across state lines before murdering her, they were subject to the 1994 Federal Death Penalty Act. In a campaign to bring anti-death penalty, or abolitionist, states to heel, in 2002 then-Attorney General John Ashcroft overruled a state plea agreement that would have sentenced Fell to life without parole. Lee killed himself in jail in 2001. Fell is on death row in Indiana.
The case rekindled Vermont’s abolitionism. In 2005, anticipating the sentence, Lawler, who was working with Amnesty International, joined representatives of the American Friends Service Committee, the ACLU and others to found Vermonters Against the Death Penalty.
The crime also brought cries to reinstate the death penalty in Vermont.
Each side vied for citizens’ sympathy. “The defendant had a childhood that most of us cannot even begin to imagine living through,” Lawler blogged. “He suffered physical, sexual and emotional abuse from practically everyone in his life, witnessed his parents stab each other during a drunken argument; he was abandoned by both of them by the time he was 13. Everyone in his life gave up on him. And then society did by condemning him to die.”
Meanwhile, on The Burlington Free Press comment board, opinions echoed this anonymous writer’s: “If there was ever a case for the death penalty, this is it. [Fell] murdered a woman whose only mistake that day was going to work . . . He will never be a useful member of society. He cannot be rehabilitated. All he will ever be is a bloodsucker latched on to civilized society. The sooner he is put to death the better off this planet will be.”
Such a position would seem intractable — but not to Lawler. “I have always believed,” she wrote, “that one of the reasons why some people support the death penalty is because they simply don’t know the truth about it.” For instance, ending up on death row has little to do with the heinousness of the crime; 95 percent of death row inmates are indigent. If people knew the facts, “perhaps they’d feel differently about it,” she suggested.
Wishful thinking? George Lakoff, pundit of “framing,” or Elliot Aronson, the psychologist who coined the term “cognitive dissonance,” or Drew Westen, whose recent book The Political Brain exhorts Democrats to vie for voters’ hearts rather than their heads, would say yes. So, sadly, would I. The facts rarely change people’s minds. When the facts don’t jibe with feelings or worldview, most people figure out a way to dismiss the facts and justify their own impressions of reality. It’s not that minds can’t be changed, just that hearts must be won first. The anti-abortion movement understands this when it deploys feelings — notably, shame about sex — to open people to the misinformation that supports its agenda. Along with negative emotions, anti-choicers win allies by drawing sympathy to the unborn innocent.
The task of death-penalty abolitionists is way tougher: to win sympathy for the guilty.
So abolitionists also evince compassion for the victim’s survivors. Any capital conviction legally mandates appeal. The process can take decades, and at each round survivors must freshly relive the tragedy. “Closure,” say death-penalty opponents, is forestalled over and over. And even when death comes, it cannot bring the victim back.
Some of the most moving witnesses against execution are victims’ families who have finally renounced it. Some forgive the murderer, others don’t. Some feel their lives were being consumed by hatred; they want to honor their loved ones with life, not death. Some come to feel that cooperation with the system washes their own hands in blood.
Terry King’s family is having none of it. They want Donald Fell dead, no matter how long it takes. Only his death, they feel, will ease their pain.
Who can second-guess them? Vengeance is a primal emotion, retribution an ancient act. Who are abolitionists to say that vengeance — even decades later, accomplished behind a glass wall with a sterile syringe — cannot satisfy, even heal? Though intended with love, their arguments may come across as arrogant.
In the U.S., the most effective persuader against the death penalty has not been emotional or even, precisely, rational. It has been pragmatic. As hundreds of death-row inmates are exonerated by DNA evidence or belated confessions by the real killers, people are realizing that human-made systems risk human error. Even some confirmed death penalty proponents now consider the risk of executing an innocent person intolerable. Some activists see these developments, as well as the patent class and racial inequities in the system, as grounds for reform and restriction, if not outright abolition.
I wonder, though, whether Americans, who think they can develop error-proof nuclear power or human genetic engineering, also believe mistakes in the death chamber can be eliminated. GOP presidential candidate Mitt Romney has an elaborate proposal, including mandatory DNA evidence, which he says will do just that. He’s eager to set it up — since killing as many criminals as efficiently as possible is an unwritten plank of his party’s platform. I can even imagine the pro-execution people co-opting opponents’ plaints about the toll on survivors traveling alongside the defendant on the winding road to the gallows. Wanna solve that problem? Lose the mandatory appeals! The Roberts Supreme Court, also on a mission to streamline executions, might not object. There’s no danger they will overrule the death penalty itself, which has been repeatedly upheld as a punishment not sufficiently cruel and unusual to violate the Eighth Amendment.
I often think that if someone killed my best friend, I’d want to strangle the bastard. But I know that taking justice into my own hands courts anarchy. Retribution is the community’s job; the justice system, flawed as it is, must carry it out. The state, therefore, has the solemn responsibility not to behave as an individual would, in rage. The death penalty, no matter how distanced the punishment from the crime, is a policy of rage. It is a response to rage, is fueled by politicized rage, and perpetuates rage.
Much as I have argued that social movements are emotional movements, it seems to me that in this case, only a higher principle — an ethic beyond emotion — can win the day. This principle is human rights.
To people around the world, human rights are not an abstraction. You might hear a Canadian teenager casually refer to health care as a human right, or a Bolivian peasant proclaim that his human rights are violated when a corporation buys his village’s local spring and sells the water back to him. These people, from extremely disparate circumstances, understand that everybody gets human rights simply by being born in a human body. You don’t have to deserve them, and, no matter how bad you are, you cannot lose them. They’re inalienable. No exceptions. State-sanctioned killing, they know, is the most fundamental violation of the human right to life.
“Unfortunately, the argument based solely on human rights usually does not fly with typical Americans,” Lawler wrote me. And the absence of a human rights tradition or culture makes abolition that much harder because it enables Americans to wipe large swaths of two-legged hairless mammals — “aliens,” “terrorists,” “predators” — from the category of humanity. Then we can kill them. “He’s not a normal person like the rest of us,” said Terry King’s sister Barbara Tuttle at Fell’s sentencing. “He’s subhuman. Now he’s going to his punishment.”
Rachel Lawler and her comrades in the abolitionist movement have not given up on Barbara Tuttle, and for that I thank them. They also continue to talk about human rights, even though they know the argument may not fly. Vermont should take their example, and in its best moments it has. Some citizens opposed Act 60 and civil unions, but both laws make real the principle that every person counts equally. With experience, maybe the feelings will follow.
And maybe there is an incipient emotion of human rights out there in America. For an example, I refer you to the homepage of Pro-Death Penalty (prodeath penalty.com), graced by the photograph of a smiling 8-year-old Tennessean named Cary Ann Medlin. “Jesus loves you,” we learn Cary kept telling her rapist Robert Coe, before he slit her throat. I could be wrong, but I take Cary’s statement to be an affirmation of the man’s humanity.