The Execution of Nathan Hale

The first in a three-part series examining the death penalty in America.

In order to understand the death penalty in America, it’s important to look at its position in the nation’s history.  The practice of putting an individual to death as punishment for a crime did not originate with the our New-World culture; in fact, it was as much a feature of the ancient justice systems (Babylonian, Greek, Roman) as it was of systems that directly influenced the development of the American laws and penalties (17th century Britain and 18th century France).

The history of the death penalty in America predates the history of the United States.  The first state-sponsored execution in what were then the British Colonies occurred in 1608, with the death (by firing squad) of George Kendall, a suspected spy.  In those early days, the crimes that merited capital punishment ranged from treason, as in Kendall’s case, to more minor offenses, including stealing grapes and killing chickens in Virginia (Thomas Jefferson himself introduced legislation to reform these Virginia laws, which also listed trading with Indians as grounds for execution).  Just as today, the laws regarding the application of the death penalty varied from colony to colony.

As the United States came into existence in the late 1700s, a movement to reform and even eliminate the death penalty gained momentum.  It was at this time that execution was ruled out for many less egregious offenses, and states began to codify degrees of murder.  Many of the philosophical arguments against the death penalty that still resonate today first gained momentum in this post-colonial period, including the idea that capital punishment, far from being an effective deterrent, actually increases criminal conduct by creating a culture of brutalization.  Dr. Benjamin Rush, a signer of the Declaration of Independence, and Benjamin Franklin each advanced this argument, which ultimately resulted in the new state of Pennsylvania abolishing the death penalty for all offenses except first degree murder.

The late 1700s also introduced the first and most persistent legal argument against the death penalty: the US Constitution.  While the document does not explicitly allow or disallow capital punishment, the Fifth Amendment guarantees that: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;… nor be deprived of life, liberty, or property, without the due process of law.  Basically, this means that an individual cannot be subject to punishment without first being indicted, and that no punishment, including execution, can be handed down without proper indictment, trial, and conviction.

The most familiar argument, however, is based in the prohibition against cruel and unusual punishment outlined in the Eighth Amendment.  The Amendment states: Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.  This ban on cruel and unusual punishment was cited by the US Supreme Court in 1972 in its decision in Furman v. Georgia, when it found that capital punishment (in a particular group of cases) to be unconstitutional.  This resulted in a suspension of the practice in the United States from 1972 to 1976.  Eleven states had already abandoned the death penalty by this time, but with Furman v. Georgia, the rest of the country was effectively compelled to halt executions.

This Supreme Court ruling was narrow, however, and by 1976 thirty-four states had sufficiently augmented their trial and sentencing rules to satisfy the Court’s constitutionality tests.  On January 17, 1977, Gary Gilmore was sentenced to death by firing squad in Utah, resuming the death penalty era in the US.

The trend since 1972 has been toward a more restrictive death penalty.  In the time between Furman v. Georgia and 1984, only 11 people were actually executed, thanks to a more liberal appeals process and other litigation tactics.  Moreover, the Supreme Court has issued several rulings narrowing the constitutionality of capital punishment even further, often using the Eight Amendment as grounds.  In 1977, the Court effectively barred the death penalty for any offense other than first-degree murder, treason and espionage.  In 2002, the Court held that executions of mentally retarded individuals was unconstitutional according to the Eight Amendment.  In 2005, the Court held the same for persons under the age of 18 at the time of the crime.

As a result of these restrictions – and due to other philosophical, popular, and technical factors – fourteen states and the District of Columbia have abolished the death penalty outright: Alaska, Hawaii, Illinois, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin.   Four other states had their death penalty statutes declared unconstitutional by their state supreme courts: Nebraska, New York, Kansas and Massachusetts.  Oregon has effectively suspended the death penalty following Gov. John Kitzhaber’s moratorium last month.

The death penalty continues to exist in this country, though its application has become more restrictive over the years.  The framework of the US Constitution leaves open the possibility of effective suspension – or even abolition – of the practice under the Eighth Amendment, while individual states are taking their own approach to reducing or eliminating capital punishment.

In the next articles in this series, we’ll look at why some states are limiting their executions and actively reducing their death row populations, and why some states continue to rely on capital punishment as a cornerstone of their justice systems.

To read more about the history of capital punishment in the US, visit the following links:

http://www.deathpenaltyinfo.org/part-i-history-death-penalty#intro
http://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States
http://www.archives.gov/exhibits/charters/constitution_transcript.html
http://www.usconstitution.net/constfaq_q8.html
http://www.antideathpenalty.org/history.html

This is not the first accusation the LA County Sheriff has encountered.  In fact, the sheriff’s deaprtment asserts as much, telling the Wall Street Journal that “the suit contains no new allegations than the ones that have been leveled against the department for years.”

From the WSJ article:

The department has been accused of jail abuses for decades—well before Mr. Baca was elected sheriff in 1998. Under a federal decree resulting from an overcrowding suit, the ACLU has been monitoring treatment of inmates for years. Since at least 2008, the ACLU has issued reports alleging inmate abuse.

Considering the state prison realignment currently underway in California, it will be interesting to see how the sheriff’s department handles (or remedies) the accusations put forth in this suit.  As of the end of 2011, the LA County jail system had been receiving nearly extra 235 inmates per week as a result of the state’s realignment plan, according to an assistant sheriff.  With the state still under budgetary strain, it will be difficult for LA County to draw down the resources it would need to accommodate the extra inmates.  The same quantity of staff guarding an increasing number of inmates presents a potentially toxic correctional environment.

Of course, the Supreme Court ruling that prompted California’s realignment plan was not designed to shift the burden from one correctional agency (the CDCR) to another (the LA County Sheriff’s Dept.), but rather to compel the state to improve living and health care conditions for inmates in its care.  Hopefully, the LA County Sheriff’s Department can halt the alleged abuses before they face a similar edict.

Alcatraz, which premiered Monday on Fox, is the new show from producer J.J. Abrams, the mind behind Lost.  As you might expect, there are plenty of plot twists and conspiracy theories, and some metaphysical bends that strain the imagination.  And just as Lost was only tangentially about a plane crash and a tropical island, the only corrections-related aspect of Alcatraz is its title.  This is no Lockdown.

It is, however, an entertaining procedural with plenty of footage of both the real and an imagined Alcatraz – and several interesting flashbacks that give a feel of what The Rock must have been like when it was still operational.  The premise is solidly Abramsiam – the day before Alcatraz closed in 1963, 300 inmates and guards vanished, only to reappear in the San Francisco of the present, not having aged a day.  The first of these apparitions is an inmate who was falsely convicted and mistreated while incarcerated, and though he commits some present-day crimes that the show’s protagonists must solve, it’s clear that he’s not a 50-year recidivist.

Alcatraz is entertaining and mind-bending and set in perhaps the country’s highest-profile defunct prison.  We’ll be tuning in next week… will you?

Detractors point at these pardons and claim that the accident of proximity to the governor should not merit clemency for serious crimes. Mississippi Public Service Commissioner Brandon Presley summed up the prevailing sentiment in a quote run by the Associated Press: “Serving your sentence at the Governor’s Mansion where you pour liquor, cook and clean should not earn a pardon for murder.”

While it’s hard to disagree with such a rational-seeming sound bite, we nonetheless believe that the practice of clemency by the executive branch of state government is a valuable part of our criminal justice system, and do not find fault with Gov. Barbour’s end-of-term pardons.  Moreover, the fact that the governor had the opportunity to know and interact with these inmates on a daily basis should count for something.  We are not arguing for quid pro quo (no, Commissioner Presley, we don’t believe that bartending, cooking and cleaning should, on their face, erase a murder conviction), but we do think that the clemency tradition is augmented – not hurt – by having the pardoner know the person he’s pardoning.

This is the rationale Gov. Barbour used in defending the pardons.  In an article written by Jessica Bakeman for the Jackson Clarion-Ledger, the governor recounts a childhood story about an inmate (convicted of murder) who was assigned to his ailing grandfather as a caregiver, saying that experience gave him insight into the importance of second chances.  “The state is not an individual that wants vengeance,” said Barbour, quoted in the Clarion-Ledger article. “We believe in the forgiveness of sins.” (Never mind the fact that there are currently 57 inmates on Mississippi’s Death Row, and that of the 15 executions carried out by the state since 1975, nine of them occurred during Barbour’s two terms as governor.)

As for the majority of the pardons issued by Gov. Barbour, we take him at his word that most were issued to already-released offenders, and that most were granted with the approval of the state’s parole board.  We recognize that end-of-term pardons are a generally accepted practice of outgoing chief executives – be they US Presidents or state Governors – and are a custom that, in the best case, can further justice when the justice system has failed, and in the worst case simply demonstrate the state’s capacity for forgiveness and second chances.

Today, though, we’re dedicating our space to other publications – those that put out the best corrections-related articles we read this year.  Some of them touch on topics we’re covered, others offer analysis on persons and events we would never have known about without reading the article.  In our opinion, these are all well-crafted stories, with exemplary writing and poignant subjects.  Since it’s the end of the year (and a time when many of us have an extra minute or two to read a longer magazine piece), we thought we’d compile these articles for you.

Enjoy! Let us know what you think.

Central Booking
by Keith Gessen
The New Yorker | November 2011

Part of the Occupy Wall Street movement, the author is arrested during a demonstration and gets a close-up look at the central booking processing area at the Manhattan Detention Complex.

No Country for Innocent Men
By Beth Schwartzapfel
Mother Jones | December 2011

A wrongly convicted man dies in prison before the confession that might have exonerated him can make its way through the Texas Criminal Justice system.  Gov. Rick Perry issues a posthumous pardon.

Three at Last!
By Sean Flynn
GQ | December 2011

The West Memphis Three, a cause célèbre for the better part of a decade, were finally released this summer.

Fortresses of Solitude (Part 1)
By James Ridgeway and Jean Casella
SolitaryWatch.com | February 2011

An examination of solitary confinement, its widespread use in the American correctional system, and the activists and organizations that are fighting it.

Across CA, Jails Not Ready to Relieve Prison Overcrowding
By Justine Sharrock
New America Media | June 2011

In the wake of the landmark Brown v Plata Supreme Court ruling, the State of California began realigning its prison population, shifting many offenders to county jails.

Lockdown
By Brent Rose
Gizmodo | October 2011

Gizmodo’s four-part series on technology and other contraband in San Quentin prison.

Part I – Prison Hacks
Part II – Prison Weapons
Part III – Phones In Jail
Part IV – Prison Economy

Green Job Training in Prisons Benefits Everyone
By Leah Morgan
Corrections Today | April/May 2011

From Corrections Today’s environment and sustainability issue, a look at the benefit – both short and long term – of training inmates for clean energy jobs.

All of these late-year holidays, though, carry a larger meaning.  Each emphasize the importance of family and togetherness, if not in their history and etymology, than certainly in their observance and celebration.  It is this sense of coming together, and basking in the warmth of your friends and family in the cold, waning days of the year, that truly defines the holiday season.

Many of us are fortunate to have our loved ones close during this time.  But it’s also true that some of us will be sharing the holidays with loved ones from afar.  Some members of the JPay Family fall into this latter group; we know how difficult that can be.  We also know, however, that every visit, every letter, every email and every phone call is a little transmission of the holiday spirit, and that even if you’re not physically together, you’re connected through the warmth and joy of the season.

For our part, we enjoy every minute we get to spend with the JPay Family, both throughout the year and during these special winter times.  So whatever holiday you observe, we wish you a merry and happy one, and the same to all your friends and family.

Happy Holidays, from the JPay Family to yours.

Harris-Moore pled guilty last Friday to all charges, and the judge handed down a sentence of seven years.  The sentence will run concurrently with a Federal sentence on similar charges.

The Barefoot Bandit’s story was so improbable and intriguing that it merited a movie deal; the story of a young man (a boy really) leading state and federal authorities on a chase that included James-Bond-esque near-misses and exotic locales was optioned for $1.3 million.

Harris-Moore’s family won’t be able to send him any of that through JPay, though – the money has been distributed to his victims as part of his federal plea deal.  The lesson?  Crime – even nation-captivating, Facebook-fan-page-producing, straight-from-a-movie-script crime – never pays.