Thou Shalt Not Kill: Minnesota considers reinstating the death penalty

I used to support the death penalty, like Minnesota used to execute people. Before capital punishment was abolished in 1911, Minnesota’s last execution, in 1906, was the botched hanging of William Williams. Both the rope and Williams’ neck stretched and the condemned man’s feet hit the floor. Three deputies hauled the rope upward to carry out William’s death by strangulation which lasted 14 and a half minutes.

Hearing that Gov. Tim Pawlenty wants executions again reminded me how my position changed: “provisional” support that I suspect mirrors many capital punishment supporters’ positions.

“Anytime you’re an island, you have to think, ‘Is being out of sync a good thing or a bad thing?’” Pawlenty said January 27, announcing his aim to restore capital punishment in Minnesota by putting an amendment to the State Constitution on the November ballot. It depends on how one defines “out of sync” especially considering that 112 countries don’t execute people and three countries abolish it annually.

“It’s a regression,” observes Rose Park, attorney with Minnesota Advocates for Human Rights, an organization that sends lawyers across the country to represent people on Death Row. “Since 2002, 81 percent of executions take place in two countries: the United States and China. Executions of convicted youth under 18 years of age occur in only five countries: the United States, Iran, China, Pakistan and the Democratic Republic of Congo. The world is moving away from capital punishment; why would Minnesota move in the opposite direction?”

Pawlenty claims “only the most heinous crimes” will merit death, alluding to the Dru Sjodin case, the kind of crime that bolsters support for the death penalty by people ambivalent toward it, as I was.

A similar case in my home state began my questioning of capital punishment. In 1981, Cheryl Fergeson, a white, 16-year-old girl “disappeared” at a high school soccer tournament in a small town outside of Houston, Texas. Janitors were enlisted to search. Two of them found her raped and strangled body stuffed in a storage room. One janitor was a developmentally disabled white man and the other one, Clarence Lee Brandley, head janitor and an African-American, was charged with the crime.

Press coverage of the case convinced me of Brandley’s guilt. And, having myself survived a brutal rape by a stranger, I was convinced the crime justified execution. Four years later, a successful Houston lawyer, “Racehorse” Hanes (known for defending innocents) took the case as a result of a grassroots defense committee, sparking doubts in my mind. Just five days before Brandley was to meet Old Sparky at Huntsville prison, a hearing was granted.

Going to Brandley’s defense committee meeting, I reconsidered the case with a growing sense of horror. The Texas Ranger to whom Brandley and his co-worker reported their gruesome discovery had said, “One of you is going to hang for this. Since you’re the nigger, you’re elected.” From that moment, the “investigation” centered on Brandley. Witnesses were pressured to lie by police intimidation and threats that they would be charged with the crime; physical evidence exonerating Brandley was deliberately destroyed or “lost”; Brandley’s incompetent attorney (disbarred shortly after trial) privately met with the judge and prosecutor, promising to render only minimal defense; and the jury was all-white. I joined the defense committee, started researching capital punishment and eventually exchanged letters with Brandley, a “regular guy” snared by hideous circumstances.

It took four more years and another five-day brush with execution before a judge saw this evidence and vacated the conviction he called “the worst miscarriage of justice” he’d seen in 40 years. But the State of Texas could retry the case and Brandley stayed on Death Row for two more years despite solid evidence proving his innocence and pointing to another (white) janitor as the perpetrator who was never charged in the rape/murder.

If the Brandley case sounds like backward Texas “justice,” consider the facts. Prof. James Leiberman of Columbia Law School, at the behest of the Senate’s Judiciary Committee, studied all capital convictions from 1973 (when the Supreme Court reinstated an allegedly “more fair” death penalty) to 1993 and learned that large percentages of the convictions were found to be in error. The national error rate was 68 percent. California, Maryland and Mississippi’s error rates are 75 percent or higher while Illinois’ error rate is 66 percent. (For some perspective, non-death penalty cases have a 15 percent error rate.) Last year in the United States, 65 people were executed and 10 were exonerated. Maryland and Illinois exonerated half of their Death Row inmates. Last September, a Department of Justice study revealed inherent racial bias in that 80 percent of those facing death penalty charges are people of color. The University of Minnesota Law School “Color of Justice” study revealed similar undeniable inequities: an African-American man is 27 times more likely to be incarcerated than a white man—indicating whose death warrants Pawlenty would be signing.

“I find the death penalty very frightening ... a form of torture—in sentencing and execution. It’s deeply offensive the degree to which it’s utterly irreversible,” says Gabe Ormsby, activist with Twin Cities’ chapter of Amnesty International (AI). “Wrongful conviction with a prison sentence, you can at least let the person out. Once a person’s executed, there’s no going back. For a State to make the presumption they’re that infallible and have that power I find incomprehensible.”
Former Philadelphia journalist, Mumia Abu-Jamal, on Pennsylvania’s Death Row since 1982, has inspired an international movement with his books and radio commentaries. He describes Death Row as “a bright, shining hell,” where one spends 23 hours a day in a harshly lit, windowless space the size of your bathroom; alone, never touched (except to be strip-searched).

In “Death—The Poor’s Prerogative,” Abu-Jamal observes, “Those that ain’t got the capital get the punishment—once again we see the inherent truths that lie in the proverbs of the poor.”

Park notes that 95 percent of those charged with death penalty crimes cannot afford attorneys. She cites a common example of Abu-Jamal’s observation: a three-day trial, $1,000 paid to the public defender. The Supreme Court refuses to overturn death sentences, Park says, where defendants’ attorneys all too often spend short trials sleeping, drunk, or high on drugs without gathering evidence and without calling witnesses. Expensive forensic evidence (like DNA) is unobtainable to poor defendants, and prosecutors consistently resist tests that might prove innocence. Currently, dozens of Oklahoma death penalty cases are under federal investigation because of false testimony by a State forensics expert.

For wealthy defendants, it’s a different story. Recently, a New York State millionaire living under an assumed name in Texas shot his neighbor, chopped up the body and dumped it in Galveston Bay; he was acquitted. Heir John E. Dupont shot his personal trainer. The death penalty was not sought and Dupont was found “not guilty by reason of insanity.” If the situation were reversed and these rich men’s less-privileged victims had been on trial, who can doubt opposite outcomes? Contrary to myth, mentally ill people are regularly executed. A broken healthcare system makes mental health services a privilege, resulting in poor schizophrenics and psychotics finally getting medication only to render them legally sane before being killed. Poor guilty defendants don’t get equality under the law when money determines verdicts and who faces the death penalty and who does not.

Even more disturbing is the recent trend toward executing younger and younger defendants. Child-protection laws have been undermined and there is a lack of mental health services for teenagers. In Minneapolis there are less than 100 beds to serve 800 homeless youth nightly. Teenagers are met with more fear and punishment than protection and resources. More teenagers are charged as adults, which means more teenagers are facing execution in violation of international human rights laws passed from 1966 to 1998.

“You can’t vote. You’re not supposed to drink or smoke. Yet, we can execute you,” says Paul Werger, A.I. State Death Penalty coordinator. New research reveals that teenagers’ brains are not fully developed, especially in areas controlling emotion, impulse-control and reasoning, contradicting notions of adult standards of accountability. “How many people on Death Row have horrific stories as children that would explain their behavior? I’d never excuse murder, but how many people have terrible stories and the State was involved in some way that they could have protected that person from evolving into the mad criminal they are now,” Werger remarked.

Consider the economics of capital punishment. The cost of a capital case’s legal process is $2.3 million—three times more than life-without-parole incarceration. Werger notes that those funds come from individual county’s budgets. “This money is pulled from schools, parks, social services—to kill one guy. If you don’t want your taxes raised, don’t be in favor of the death penalty.”

Building Pawlenty’s 20-inmate Death Row would cost $3.7 million and seven years’ maintenance would cost $2.5 million. Compare this to the $2.5 million (after a 50 percent cut) legislators budgeted to shelter Minnesota’s 7,000 homeless. What are our priorities?

Proponents of capital punishment should examine the history of Minnesota’s death penalty in “Legacies of Violence: Lynching and Executions in Minnesota” by Twin Cities attorney John Bessler. Bessler, a Twin Cities lawyer, has represented prisoners appealing death penalty cases. Almost from the beginning of Minnesota’s executions, there were questions of innocence and calls to abolish the practice. In 1860, Ann Bilanski was the first white person and only woman executed. Circumstantial evidence and unreliable witnesses condemned her for poisoning her husband with arsenic. At the time, there were six known tests for arsenic poisoning. In the Bilanski case two failed, two were unreliable, one indicated a possibility of arsenic, and one wasn’t used. The prosecutor expressed “grave and serious doubts the defendant received a fair trial” to the Governor the day before she was hung. Evidence indicates Bilanski’s husband died of natural causes or, perhaps, suicide. Her innocence is still debated today.

What’s most stunning in Bessler’s Minnesota history are the undeniable links between lynching and State executions. Capital punishment became law to prevent “mob justice.” Then, prosecutors were often pressured to seek death with threats of lynching if they didn’t. The 1862 Mankato mass-hanging of 38 Lakota men is the largest mass execution in U.S. history. Initially, 313 Lakota were sentenced to death for “massacres” in “trials” that sometimes lasted only five minutes. President Lincoln reviewed each case, resisting Minnesota politicians’ demands for quick executions, while whites confiscated Indian lands. Four thousand cheering Minnesotans witnessed the executions. Within days, it was realized some had not even been present at battles. Confusion over names condemned the Native American Chaska, who had actually saved a woman and her children.

Before the death penalty was abolished in Minnesota, it was mostly people of color and virtually all poor people, who were executed. When a railroad executive murdered a striking St. Paul worker in the late 1890s, the verdict was acquittal. Prosecutors never considered execution for a “pillar of the community” who snuffed out a young laborer. Famous labor struggles turned violent, like Haymarket in 1890s Chicago or the Utah frame-up of labor organizer Joe Hill, which ended, respectively, in hangings and a firing squad.

Ironically, a Republican House member, George McKenzie, led the legislative battles to abolish Minnesota executions which he called “the harlot of judicial murder.”

Bessler devotes a chapter to the 1920 Duluth lynching of three African-American circus workers, falsely accused of rape. The chilling description replicates any Mississippi Klan hanging. Thirteen people were arrested by racial profiling, three were randomly dragged from jail. Blatant indifference to guilt or innocence surrounded citizens’ demand to “Kill the niggers!”

Such hostile indifference to truth is common in cases in which ethnic minorities charged with “heinous cases” face execution. Cheryl Fergeson’s parents were outraged when Clarence Brandley was freed from Death Row. They ignored the court clerk admitting she helped the judge and prosecutor take evidence to the city dump. It didn’t matter that janitors testified they saw a white co-worker follow Cheryl into the girls’ restroom and Brandley was elsewhere. Like the Texas Ranger, the Fergesons just wanted “someone to pay” for their daughter’s murder. Racism insured Brandley was “elected”—regardless of the evidence proving his innocence. After living here for 15 years, I’m convinced the death penalty would operate no differently in Minnesota than it does in Texas.

Executions may actually escalate crime. A 2002 New York Times study found that states with death penalties had homicide rates 48 percent to 101 percent higher than states without capital punishment. The 12 no death penalty states had lower or the same crime rates than the 38 execution states.

Bessler’s book tells of the soul-wrenching anguish Lincoln went through considering the Lakotas’ death-warrants. Pawlenty should contemplate the President’s words months before his assassination. “Blood cannot restore blood and government should not act for revenge.”

The senseless cruelty in some of these cases would outrage anyone; retribution’s rage stirs in me, too. But, I’m relieved, when I remember how strongly I once supported killing an innocent man, that Minnesota has no death penalty. The last I heard, Clarence Brandley was married with children and working to get kids out of gangs.

Thurs. Feb. 26, noon, Minnesota Coalition Against the Death Penalty Lobby Day, State Capitol, St. Paul. Bills reinstating executions are SF1860 and HF1602. Legislators are also considering a refernedum for November’s ballot. For more information: www.twincitiesamnesty.org. 612-872-7283.