Sister Helen Prejean

Truth springs up from the ground” – Psalm 85

For the last twenty years I’ve been watching at close range the bizarre and zany way the death penalty comes down on some and spares others. Theory about how the death penalty is supposed to be applied – who deserves to die and who should be imprisoned instead – is one thing; what happens on the ground, in practice, is quite another.

So, imagine my joy upon hearing that the abstract theory folks up in the tower – the American Law Institute consisting of 4,000 judges, lawyers, and law professors – have disavowed their own 1962 Model Penal Code.

What the ALI set out to do in the Model Code – or so they thought – was to provide an even-handed, useable set of criteria for juries to follow in capital cases. It was the intellectual framework that lulled us into thinking that we had a reliable process, that gave us – or, at least, many among us – hope that we could have systematic, fair, reasonably predictable guidelines to help juries decide when their fellow citizens deserved to die.

Late last year, the ALI admitted that their Model Code has failed.

This is huge, a tectonic shift. It was the ALI’s model, issued in 1962, that provided the intellectual framework which the Supreme Court used to reinstitute the death penalty in 1976 in Gregg v. Georgia. They all thought, then, that there was a balancing act courts and juries could follow, a balancing act that would correct the wild arbitrariness in the application of the death penalty and the way it came down so disproportionately on poor people and racial minorities.

But after 30 years of trying to make the death penalty work, the ALI, like Justice Harry Blackmun in 1994, decided to chuck the whole thing, calling it “irretrievably broken”. They cited the large number of innocent people wrongly sentenced to death and the continuing extreme arbitrariness in its application.

Consider: Two people can commit almost identical murders; one gets death and the other doesn’t. This means there’s no systematic way to apply the guidelines, and so local culture and prejudices play a huge role in determining who “gets it” and who doesn’t.

The ALI also noted that having judges and prosecutors elected doesn’t help fair and even-handed administration of the Code because politics gets in there, and pleasing constituents gets to play a more important role than following the constitutional protections to assure justice.

The broken core

Here’s the heart of why the Model Code doesn’t work and can never work: it all hangs on two opposing “irreconcilable constitutional commands”, as the ALI put it. Those commands are bound together in the phrase “guided discretion”. The intent of guided discretion was to put an end to the arbitrariness while allowing for the uniqueness of individual circumstances.

All murders are terrible, so who should get the death penalty? The Code said that juries need to weigh the terribleness of the murder, the “aggravating circumstances”. Was it heinous and cold-blooded and premeditated? Was it done in a particularly vicious, horrible, evil way? These questions were meant to guide juries in deciding who deserved death.

Maybe you can see the problem coming. See all those adjectives? Big problem, especially given the guideline that only the “worst of the worst” murders – not ordinary, garden variety murders – should get the ultimate penalty of death. In practice nobody knows what the Sam Hill that means. In the end, juries follow hunches or gut feelings, or whatever pulls people to decide things.

And that’s only the beginning of the difficulty with “guided discretion.” Here’s the other half of the irreconcilable commands: “discretion”. The guideline issued by the Supreme Court is that juries can consider mitigating circumstances of a person’s life when deciding whether the death penalty is warranted. Human beings have a way of showing up in a unique way, which means their actions are unique, influenced by an endless number of variables. Juries were to take these variables into account.

So, juries not only have to consider the facts of the crime but also the infinite number of factors that influence human beings to commit acts. And the sky’s the limit when it comes to mitigating circumstances: childhood abuse, genetic propensities such as fetal alcohol syndrome, age, mental acuity, family relationships, and so on, and so on. It’s infinite, and so, ultimately, not measurable.

After almost 50 years, that’s what the ALI finally recognized. What we, on the ground, have seen all along. The Model Code looked good on paper, but there’s just no systematic way to follow its guidelines.

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I was in Washington state earlier this month, where I met with two senators in Olympia, the state capitol, to plan a strategy to repeal the death penalty in Washington. It’s been years since there was an execution here and only a handful of people are on death row. As I talk in various universities I’m learning that a number of Washingtonians don’t even know there is a death penalty in the state.

Like many other states WA faces a severe budget crunch this year, so the bill will focus on taking the extravagant amount of money used to maintain a death machine and devote it instead to real help for murder victims’ families, solving cold cases, and doing catch up on the huge backlog of prisoners awaiting DNA tests.

A key part of the organizing strategy will be to involve college students in the three-year  campaign of repeal.

Whenever we talk budget I always emphasize that financial resources are not simply a “practical” issue, but rather a deeply moral issue. Martin Luther King, Jr. used to say a budget is a moral document.

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President Obama met with the press before his visit with Pope Benedict on July 10. He talked about how he admired Cardinal Bernardine’s “seamless garment” approach to pro-life, that the cardinal included in its scope a wide range of issues: “He was concerned about poverty, he was concerned with how children were treated, he was concerned about the death penalty…”

Now here’s interesting fodder for a conversation with President Obama. For starters: “Aren’t you, too, very, very concerned about the fact that already 135 innocent people have been released from death row? How many will it take before we recognize the failed system? Not to mention the shocking, appalling racist application of the death penalty presently carried out in the Deep South states.”

Do you have any ideas about how we might get a conversation going with President Obama and his wife, Michelle, about this issue? Would you like to help us mount a young people’s letter writing campaign to the White House to end the death penalty in the U.S.?

Think boldly. Organize strategically. Act quickly. Please respond and let me know your thinking!

- Sister Helen

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I am following the people of Iran in their struggle for democracy closely in my heart and prayer these days. My heart takes fire from the young people risking their lives to help a new nation come.

Take young Neda Agha Soltan, killed by a single bullet this past Saturday, her killing caught on video for all the world to see. Young people writing their souls online. One student saying “I will participate in the demonstrations tomorrow. Maybe I’ll be killed. I’m listening to all my favorite music. I even want to dance to a few songs…I write these words for the next generation so they know we did not surrender to despotism.”

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“Give us tears…give us anger…”

Bishop Gene Robinson delivered the invocation at the kickoff event for Obama’s inauguration. I am thankful for his words, which I am committing to memory. I want to quote the entire text of his invocation:

Welcome to Washington! The fun is about to begin, but first, please join me in pausing for a moment, to ask God’s blessing upon our nation and our next president.

O God of our many understandings, we pray that you will…

Bless us with tears – for a world in which over a billion people exist on less than a dollar a day, where young women from many lands are beaten and raped for wanting an education, and thousands die daily from malnutrition, malaria, and AIDS.

Bless us with anger – at discrimination, at home and abroad, against refugees and immigrants, women, people of color, gay, lesbian, bisexual and transgender people.

Bless us with discomfort – at the easy, simplistic “answers” we’ve preferred to hear from our politicians, instead of the truth, about ourselves and the world, which we need to face if we are going to rise to the challenges of the future.

Bless us with patience – and the knowledge that none of what ails us will be “fixed” anytime soon, and the understanding that our new president is a human being, not a messiah.

Bless us with humility – open to understanding that our own needs must always be balanced with those of the world.

Bless us with freedom from mere tolerance – replacing it with a genuine respect and warm embrace of our differences, and an understanding that in our diversity, we are stronger.

Bless us with compassion and generosity – remembering that every religion’s God judges us by the way we care for the most vulnerable in the human community, whether across town or across the world.

And God, we give you thanks for your child Barack, as he assumes the office of President of the United States.

Give him wisdom beyond his years, and inspire him with Lincoln’s reconciling leadership style, President Kennedy’s ability to enlist our best efforts, and Dr. King’s dream of a nation for ALL the people.

Give him a quiet heart, for our Ship of State needs a steady, calm captain in these times.

Give him stirring words, for we will need to be inspired and motivated to make the personal and common sacrifices necessary to facing the challenges ahead.

Make him color-blind, reminding him of his own words that under his leadership, there will be neither red nor blue states, but the United States.

Help him remember his own oppression as a minority, drawing on that experience of discrimination, that he might seek to change the lives of those who are still its victims.

Give him the strength to find family time and privacy, and help him remember that even though he is president, a father only gets one shot at his daughters’ childhoods.

And please, God, keep him safe. We know we ask too much of our presidents, and we’re asking FAR too much of this one. We know the risk he and his wife are taking for all of us, and we implore you, O good and great God, to keep him safe. Hold him in the palm of your hand – that he might do the work we have called him to do, that he might find joy in this impossible calling, and that in the end, he might lead us as a nation to a place of integrity, prosperity and peace.

AMEN.

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