Michael Kroll is a writer/activist specializing in the American criminal justice system, with a special emphasis on the death penalty. He has been published widely from the Los Angeles Times to The New York Times, has won numerous writing awards, including the Western Publishers’ Association’s Best Feature article (“The Final Days of Robert Alton Harris,” California Lawyer, April 1990) and the Eugene Block Journalism Special Recognition Award "for work on a universal human rights issue." He was the first executive director of the Death Penalty Information Center in Washington, D.C.,a playwrite and was, until March 2011, senior editor for The Beat Within, a weekly magazine of writing from incarcerated juveniles.
Sonny and Michael have been friends for over 20 years.
The intimate details of California's legal gassings,
as told by the men who participated in them
By Michael A. Kroll
CALIFORNIA LIVING, March 25, 1984
In 1977 the state legislature passed Senator George Deukmejian’s bill establishing death as punishment for certain classes of first degree murder. In 1978 California voters passed the Briggs initiative, which widened the scope of the death penalty's application. From that time up until January 31 of this year, there have been 170 people sentenced to death, all for the crime of murder. One of the condemned, Chol Soo Lee, had his death sentence reversed and was later acquitted of the crime for which be was sent to prison. Four others committed suicide on death row. Of the remaining, 146 cases are currently pending appeal in the State Supreme Court, which has reversed nineteen death sentences and affirmed three: Earl Lloyd Jackson, Stevie Lamar Fields and Robert Alton Harris.
On January 23 the U.S. Supreme Court held in Robert Harris's case that states are not required by the U.S. Constitution to conduct proportionality review to ensure that, relative to the sentences of other persons convicted of murder, a death sentence is neither discriminatory nor arbitrary.
Harris will now return to U.S. District Court in San Diego for a hearing on his other claim that the death penalty is discriminatorily imposed against those whose victims were white: while 42 percent of California's death row population is white and 37 percent is black, 72 percent of the victims of those on death row were white; only 8 percent were black. (Hispanics account for 17 percent of those condemned to death, and 14 percent were victims.)
It has been seventeen years since the last gassing. Today there are nearly as many people awaiting their rendezvous with the gas chamber as have been executed in its 45-year history. The number of those condemned to die in California's gas chamber grows by approximately 40 people a year.
When the U.S. Supreme Court rejected the claim of Robert Alton Harris this January, there were many who hoped that executions in California would resume immediately. Los Angeles County District Attorney Robert H. Philibosian, no doubt expressing the sentiments of a majority of his constituents, let it be known that he was looking forward to witnessing the grisly spectacle. Within two days, more than 100 people had put in their bids for ringside seats at the next killing of a human being in the gas chamber at San Quentin Prison, just across the Golden Gate Bridge from San Francisco. California Department of Corrections spokesperson Phil Guthrie, while promising to accommodate Philibosian's request, made it clear that he personally had no desire to watch. Unlike the district attorney and the other would-be spectators, Guthrie has already witnessed an execution--and for him, one was enough.
The first victim of official lethal gassing in California was a pig. It was in March 1938, only two weeks after San Quentin prisoners bad unloaded the two-ton, eight-sided chamber from the barge that brought it across the Bay. According to Horace Jackson, whose Denver based Eaton Metal Products Company built the chamber, a pig is the hardest thing to kill. And "if it works on a pig," he says, "it'll work on a man." The animal was put into a wire cage that was then laid across the armrests of the two stainless steel chairs inside the chamber. When the gas reached its snout, the pig jumped to its feet and tried to turn around within the tiny space. Climbing up the side of the cage to the top, it tried to push its nose through the wire, outside the reach of the deadly fumes. Finally, it fell to the floor of the cage, drooling and snorting. And then it died.
Warden Court Smith, a tough prison administrator who had presided over many hangings--and who supported capital punishment--turned his back, unable to watch the pig's desperate attempts to breathe. He did not see "that little pig die, straining away from the choking fumes, dashing his bead against unyielding steel, fighting with all the strength of his little body for those awful seconds," as San Francisco Chronicle reporter Willis O'Brien described it.
O'Brien wrote: "If the men and women whom the State throws into the maw of this devouring monster suffer as that little pig suffered, if the mercy of nepenthe comes as slowly for the human body as it did for the little porker, then there will be terrible things done to men's souls and their tortured brains. . . . It is the most hellish form of capital punishment since civilized courts sentenced men to be hanged [or] drawn and quartered."
Despite the promise of the early promoters of the gas chamber that the hydrocyanic acid gas fumes would bring quick, clean, and painless death in fifteen seconds, nearly three minutes passed before the 25-pound pig died. Since that day in 1938, Californians have gassed 196 human beings--sometimes alone, sometimes two at a time, strapped side by side in Chair A and Chair B. And not unlike the pig's final moments, the end has not always been particularly quick or painless for many who have faced their deaths at San Quentin.
The gas chamber squats like a green toadstool in the corner of a high-ceilinged room. There is an ineffable quality here that causes your stomach to shrink up. It smells like a tomb, and you feel a chill that cannot be explained by the absence of the sun. As Lieutenant Bill McMullen turns the huge, brass, dungeonlike key in the door to admit us, be shudders slightly. "This place is eerie," he says. "I always feel it when I come into this room, like it's haunted or something. So many people have died here."
The room itself is outside the main wall, as if banished by the living, but attached to the North Cell Block, which houses death row six floors above. The condemned enter from an inside door only a few feet opposite the entrance to the chamber itself. Official witnesses enter through a door of heavy steel and then one of prison bars. No outward signs identify the deadly contents of the room except for a T -shaped exhaust pipe, high atop the building, that spews the poison into the Marin sky after it has done its deed.
Because of the time that has transpired since the last gassing, the staff at San Quentin is unfamiliar with the operation of the chamber, and preparing for the next execution will not be an easy task.
The official manual for operating and maintaining the gas chamber is nine pages long. It covers everything from the types of chemicals to use (such as sodium cyanide manufactured by DuPont in one-ounce, pillow-shaped briquettes the size of pigeon eggs and marketed in one-pound cans) to instructions for removing the corpse ("It is recommended that the doctor and those removing the body wear" hydrocyanic gas masks and rubber gloves and that he ruffle the hair of the prisoner to allow any gas to escape which may be. trapped").
But a written manual, no matter how complete, is no substitute for experience. So San Quentin recently called on Joe Ferretti to break in the five--member team that will officiate at upcoming executions. A short. affable man, Ferretti does not look his 79 years. When it comes to the gas chamber, there. are few people, living or dead, with as much experience as be has. In his 29 years at San Quentin, Ferretti participated in 126 executions. "I called my job babysitting," he says, "but the official name was death watch officer."
Ferretti was the officer at the main gate before be got into this other line of work. He liked working outdoors and meeting the public. He remembers wondering how anyone could work in the gas chamber--until he was asked to do the job. "First I went home and asked my wife," he says. "She said it was all right with her if it was all right with me. So I tried it." He remained at the job for the next 2:l years. "I still kept my regular job at the front gate," he says, "but they'd assign someone else to do it when I was on death watch."
"We earned $15 for death duty in the beginning," he says, chuckling. 'The last one I got $75. The executioner was making a lot more--$500 I think. He's dead now. Pretty near everyone's dead now."
Of his recent experience as teacher to the new crop of executioners, he says, "I showed them the regular routine--what we done when I was there. We did executions at ten in the morning on Friday. On Thursday, around four, we'd go upstairs and get the inmate and bring him downstairs to the death cell next to the gas chamber. Then we'd stay there, two of us, till about nine-forty-five the next morning. We'd change his clothes to fresh jeans and a white shirt without any pockets, and no underwear or shoes. I guess gas could accumulate in places like that, and when you went in to get him you could get a whiff of the stuff."
After strapping the condemned into the chamber and sealing the great steel door of the tank, he waited. "When the doctor says he's dead," Ferretti continues, "we start the pumps to pump the gas into the air outside. In about fifteen minutes, we crack the door a bit and turn a valve that lets air in the bottom. You have to pump for about half an hour before you can get in. Then two of us go in with a garden sprayer filled with ammonia to spray around his pants and clothes. It kind of neutralizes the gas. We go in in a hurry and unbuckle the straps. One grabs one side and one the other, and we scoot him into a redwood box made by prisoners in the carpentry shop. It's waiting just outside the door. Then a truck picks it up and takes it to the prison hospital where the family claims it."
Although the official manual recommends a minimum of ten minutes to kill a man, sometimes it takes longer. "I remember one colored guy that took about fifteen minutes," Ferretti says. Unable to remember the man's name, he consults one of the most prized of his many prison mementos - a small, red-vinyl-covered notebook. It contains photographs of 117 whom Ferretti helped dispatch, as well as brief descriptions of their crimes. "Of course, I helped in 126 executions." he explains, "but back in '57 they decided I shouldn't keep this book. So I had to stop after 117." On the inside back cover, he has written the numbers of people whose deaths he attended by year, beginning in 1943 and ending in 1957: "1945 - 13; 1949 - 11; 1954 - 9..."
When anything unusual happened during an execution, Ferretti faithfully recorded it in his little red book. Under the name Leanderess Riley, Ferretti wrote: "Had to carry to gas chamber. He unstrapped himself."
Leanderess Riley went to death row in 1949 for killing a Sacramento laundry man. The gassing of the 33-year-old, one-eyed, nearly deaf man was, according to Joe Ferretti, "the nastiest execution we ever had. We bad to carry the little colored guy in hollering. You could hear him a block away. I never saw a guy so scared. in all my life. His wrists were so damn small--he only weighed 80 pounds or so--he managed. to get out of the straps three times."
Riley managed to undo his restraints just before the executioner lowered the cyanide into the vats of acid. He jumped up and frantically raced around inside the chamber, screaming in terror, beating wildly on the thick glass windows. "We had to stop the process, open the chamber and strap him in again," Ferretti recalls. ''Then be did it again, but the third time they already gave him the gas. He kept right on screaming, though, right up until he got that first whiff."
Former warden Louis "Big Red" Nelson also remembers Leanderess Riley. To get himself through the execution, the tough-talking administrator had to rely on rote. “The fact that the fellow is crying and baying like a dog. . . you just can't deal with it at that point. You've got to carry out the job at hand. A grown man afraid to go to his death--as all of us are, to some degree--makes you sad. You feel sympathy for him, but you have to put those feelings aside."
Nelson has no qualms about the death penalty. To him, our time on earth is like a tenant's relationship with a landlord. "If you mess up the place or don't pay the rent, you get evicted," says the man who is sit remembered by convicts as a firm but fair administrator. On April 6, 1956, Nelson presided over the most unusual gassing he had ever witnessed, one of the 22 double executions carried out in the gas chamber. The two men, both in their early twenties, had been convicted three years earlier for killing an Oakland cabdriver after robbing him of $7 and his wristwatch. Only seconds before Nelson gave the signal to begin, one of the prisoners, Robert Pierce, managed to cut his throat with a tiny sliver of mirror he had secreted in a book. Cutting deep enough to hit a vein, he bled profusely. Nelson remembers that ''they wrapped the blue shirt he had just changed out of around his neck and led him into the chamber with blood all over his arm and shirt. He began cursing the witnesses and society in general. He nodded toward the prison officials and made sure they knew he didn't hold them responsible. It was the witnesses. He called them every filthy name in the book."
Then Pierce's partner, Smith Jordon, was brought in and strapped into Chair A. While Pierce screamed his curses, his new white shirt turning red, Jordon remained completely calm.
"Because his arm was slippery with blood," Nelson recalls, "he was able to get his right forearm free. He was trying to free his other arm when the gas hit. Everything just stopped. His arm fell, and his sentence ended in the middle of a curse." Pierce's invective was welcomed by the pro-death-penalty warden. "That kind of behavior made it personally easier," Nelson says now. "You could tell yourself the SOB deserved it."
Max Brice also remembers. Tall and gaunt, Brice was the officer in charge of executions for 35 years, until he retired to his Napa home in 1974. He says he never was really bothered by his job, never had bad dreams, hasn't thought about it much since. "If you're gonna have mental problems about it," he says, "it's better not to get on the detail to begin with."
As the officer in charge. Brice tested the machinery three days before an execution, as well as the morning before to make sure the vacuum was intact. The day before he filled each of two cheesecloth bags with sixteen cyanide tablets and attached them to the rocker arms below Chair A and Chair B. There the bags remained suspended until lowered into the vats of acid.
On the morning of the execution, Brice telephoned Western Union to make sure the gas chamber clock was accurate to the second. About ten minutes before the gassing, Brice poured a gallon and a half of distilled water into each of two mixing pots, connected by pipes to the wells under the chairs. To the water he added five pints of sulphuric acid. According to the official operating manual, ten minutes are required for the mixture to reach "an intimate mix and maximum temperature."
Usually at a minute past ten the warden nodded his head, and the ritual began. "Once the warden gave the signal," Brice says, "there was never a word spoken. Everybody knew his job, and we did our work." Sometimes, of course, the procedure was interrupted by a last-minute reprieve. Caryl Chessman spent twelve years on death row before being executed in 1960 for a crime that did not involve the taking of a life. In that time, his execution was postponed numerous times. "He used to send me notes that said, 'Well, you didn't get me this time,''' says Brice. Chessman, however, was the exception. "Most were real routine," Brice says. "They came downstairs pretty well resigned to their fate. They took it like men."
Even the women took it like men.
Barbara Graham, the third woman of the four who have been gassed in California, was executed on June 3, 1955. Convicted, along with Emmett Perkins and Jack Santo, of murdering a Los Angeles woman in her home in 1953, she denied her guilt until the very end. It was her execution that most got under the skin of Joe Ferretti.
"God, she was a beautiful woman," Ferretti remembers. "I was with her all night. We told jokes. What made it real bad was she got two stays right there, that morning. She was just walking into the chamber the first time when the phone rang, and she had to wait some more. Then it happened again. When she finally started in for the third time, she asked for a blindfold. She was the only one who ever did. I don't think she wanted to see anyone in the witness room."
Ferretti strapped Graham in, patted her knee and said, as he had to the 100 before her, "Now take a deep breath and it won't bother you." "How in the hell would you know?" she retorted. Ferretti backed quickly out of the chamber, pushed the great steel door closed and spun the heavy wheel with its bright red handles, sealing the chamber tight.
Three hours later, after the chamber had been aired out, Perkins and Santo followed Graham to their deaths. "After I got home, I just felt real down," Ferretti remembers. "Even my wife asked me what the matter was."
For Byron Eshelman, chaplain at San Quentin for two decades, it is the last execution, seventeen years ago, that is most haunting. The chaplain came to know Aaron Mitchell well, visiting the prisoner many times in his death row cell, where he had been placed in 1963 for shooting a Sacramento police officer. Eshelman came to regard Mitchell as "quiet, intelligent and composed."
The warden at the time was Lawrence Wilson, an administrator who has never believed in the death penalty. "You never get used to seeing it,' he says. "You get a sort of sinking, sick feeling. After all, there's a guy in front of you, and he struggles to stay alive but his life support system fails him. He expires before your eyes."
There was much to be done in the week before Mitchell's gassing. The chamber had not been used in four years, and new gaskets needed to be installed. The exhaust fan also had to be replaced since it was hitting against the housing, causing a terrible racket. “That banging sound would have done nothing to provide decorum at the execution," Wilson says.
Like chaplain Eshelman, Wilson also remembers Aaron Mitchell. "I had become acquainted with him on my twice monthly visits to the row," he said. "He wasn't a demanding guy, just a normal individual." Normal until April 11, 1967, the day before the execution. "After Aaron saw his mother for the last time," Wilson recalls, "he went berserk in the yard; he acted like a crazy man would act." He was dragged screaming, back to his cell, and the warden was called.
"I went up and found him lying there, yelling that he was Jesus Christ and knocking his head on the concrete floor and flailing his arms," the former warden remembers sadly. "I had seen him so normal just a short time before, but the scene was very believable."
The chief psychiatrist, Dr. David Schmidt, was summoned. He arrived to find that Mitchell's condition had not changed. It was then about three in the afternoon, just an hour before Ferretti was to come up the elevator to take the 38-year-old man to the gas chamber's holding cell. Schmidt called Wilson a few minutes later to say be did not think that Mitchell was insane. The law in California forbids the execution of an individual who is insane, because that person must be aware of what is happening to him, and why.
“When the time came for Mitchell to be taken downstairs, he did not walk the length of the row--which the condemned usually do to say goodbye to the only companions they have had, often for years. Nor did he protest when his body was searched for weapons before he was given a change of clothes. He remained passive even as his wrists were bound with leather straps and he was taken downstairs in the tiny elevator.
When Eshelman saw him that evening in the holding cell, "he was a stranger I had never met. He stood there naked, his arms outstretched, like a man in a trance." Despite the precautions, Mitchell had cut his left arm with a piece of glass, and it oozed fresh blood. To Eshelman's growing horror, Mitchell wiped the blood with the palm of his right hand and said, "This is the blood of Jesus Christ.”
Early the next morning; Dr. Schmidt called warden Wilson to reiterate that Mitchell was not crazy, Wilson felt as though he could not overrule his medical staff. The execution could proceed.
Eshelman arrived at eight to find the condemned man just as he had left him the night before, standing naked in the center of the cell. Mitchell had to be wrestled to the floor so that the harness with the stethoscope attached could be fastened around his chest. And then, Eshelman remembers, just two minutes before Wilson gave the silent signal to begin, Mitchell suddenly "let out a sustained, bloodcurdling shriek and fell back convulsively on the mattress."
In the witness room just beyond the gas chamber, 58 people stood talking quietly among themselves. Nearest to one of the chamber's seven windows was Howard Brodie, an artist/journalist. Like the others, he heard the scream, and it chilled him.
Brodie couldn't see the two death watch officers drag the barefoot Mitchell across the green rug that was rolled out from the death cell to the chamber. He could not hear Mitchell moaning as he passed warden Wilson, who stood looking at the clock. He could not see chaplain Eshelman trailing helplessly behind. What he did see was the death watch officers strap Mitchell into Chair B, the one on the left as you enter the chamber, the one closest to where Brodie was standing. He saw Ferretti attach the thin rubber tubing to the stethoscope so that Dr. McNamara, the chief medical officer, could listen to the condemned's heartbeat from outside the chamber. He watched as Mitchell was left alone in the chamber, and he heard the huge steel door clang shut. Suddenly, Mitchell cried out, "I am Jesus Christ."
Max Brice performed his duties quickly now. He signaled the chemical operator to open the valves into the chamber. The wells under both chairs filled with a gurgle through openings in the bottom. As soon as the outside vats were empty and sealed, they were filled with water to prevent the acid from backing up into them. Brice then carried out the final test, checking his gauges to make sure the chamber was airtight.
The executioner took a cotter pin from the bright red handle of the green lever, making sure to restrain it with one hand. If he let go of it, the lever would lurch forward from the weight of the rocker arms, slam against the steel wall of the chamber, and startle the man inside and the witnesses beyond. So he released it slowly, submerging the two cheesecloth bags of cyanide Into the acid.
Brice looked down through the slats in the venetian blinds that keep the witnesses and the condemned from seeing the executioners. He saw the faint wisp of smoke rising up through the perforated metal seat of the chair in which Aaron Mitchell was strapped.
Howard Brodie was on the opposite side of the chamber. He describes what he saw: "As the gas hit him his bead immediately fell to his chest. Then his head came up and be looked directly into the window I was standing next to. For nearly seven minutes, he sat up that way, with his chest heaving, saliva bubbling between his lips. He tucked his thumbs into his fist, and, finally, his head fell again."
Warden Wilson recalls feeling sick. "It seemed to take ten years. He kept gasping for air."
It took twelve minutes by the clock for Aaron Mitchell's heart to stop for good. McNamara signaled to Wilson that it was all over. A guard told the witnesses that they could leave.
Outside, it was a beautiful, warm spring day. Five hundred people had gathered at the prison gates, some to protest, some to approve. Ex-governor Edmund G. "Pat" Brown said he was there "to protest this barbarity. It's a terrible thing to snuff out a human life as you would a dog's." Perhaps he recalled a letter he had received from the man whose corpse now sagged against the straps in Chair B while the blowers evacuated the cyanide from the chamber. ''There is so much good in the worst of us, and so much bad in the best of us," Mitchell had written. Curiously, as governor, Brown had refused to commute Mitchell's death sentence, leaving the decision to his successor, Governor Ronald Reagan, who in turn delegated the responsibility to his counsel, Edwin Meese.
George Lincoln Rockwell, leader of the American Nazi Party, was also there to lend his voice. It was Mitchell's color that had drawn Rockwell to San Quentin that morning. His placard read, "GAS - THE ONLY CURE FOR BLACK CRIME.".
Michael A. Kroll is an Oakland-based freelance writer who specializes in issues of justice and a contributing editor to Pacific News Service.
Mother Teresa Visits Death Row
By Michael A. Kroll
(Sept. 14, 1997)
She was famous for her love of the despised — where else should she have gone but San Quentin?
In the volumes of words that have been spoken and written praising Mother Teresa since her death, her visit in 1988 to San Quentin’s death row has gone unremarked — except by the condemned men themselves.
Michael Wayne hunter, an award-winning writer who has been on death row since 1984, remembers he had just changed into his raggedy gym shorts and torn basketball shirt when Mother Teresa arrived.
“I wouldn’t have walked voluntarily to the front of the tier to see the warden, the governor, the president, or the pope,” he wrote. “I could not care les about them. But the warmth of her presence surrounded me. She smiled at me, blessed a religious medal, and handed it to me…
“Now I wear Mother Teresa’s medal every day… it continues to lend me strength in my darkest moments.”
Gary Hines, another man waiting on death row, remembers, “I didn’t know who she was or anything about her. I had just arrived on death row, and I didn’t have any property in my cell — no radio or television or anything.
“She came up to my cell and asked if I had family or people who cared for me. She gave me a medal of the Virgin Mary after blessing it. She said a prayer for me, and gave me a rosary. It was very uplifting.
“She came to death row to give the guys hope, to say there is always something to look forward to. She cared deeply in her heart about the sick, the dying, the poor — the poorest of the poor. She understood this.”
Each man who received a medal from Mother Teresa that day remembers it in his own individual way. But all of them share a memory of what she said as she was being led away from the tier.
Turning to the sergeant who was acting as her guide, she gestured toward the men in their cages and said, “Remember, what you do to these men you do to God.”
In 1992, a few days before my friend, Robert Harris, became the first person in 25 years to be put to death in San Quentin’s gas chamber, a Catholic seminarian called me and asked me to deliver a message from Mother Teresa. She remembered him from her visit four years earlier. “Tell Mr. Harris that Mother Teresa is praying for him.”
I relayed this message to Robert at one of our final meetings. “Mother Teresa is praying for you,” I told him in what I hoped was an appropriate tone of voice.
He smiled. “Tell her I’m praying for her, too.”
Then Robert removed the medallion she had given him from around his neck and put it on me. I am not a religious person, and yet I have worn that medal every day since. It lends me strength in my darkest moments.
What is the nature of punishment? Believe it or not, I began ruminating on this question — one that is hardly ever asked in this country — while looking at a Dennis The Menace cartoon in yesterday’s newspaper. Dennis was in his familiar place in the corner facing the wall, a baseball bat, ball and mitt at his feet. He is saying, “Baseball players are sent to the showers… not the corner!” One can imagine the defiant anger in his voice as he laments his victimhood…
Even at age six, when sent to the corner, Dennis becomes a victim in his own mind. “She did this to me,” his child’s mind thinks about his mother and temporary jailer. There is no hint of the “crime” that sent him to house arrest, except for the likelihood that it was related to that bat and ball. And, as amused as we are at his observation, we also recognize his sense of being the victim, and we feel his pain.
But, without the critical connection between cause and effect, what purpose does his punishment serve? And how do we define it? How do we distinguish between the immediate reaction to behavior we want to correct – that literal slap on the wrist when a child is found with his or her hand in the cookie jar, or the pain one feels when touching a hot stove — and the more deliberately thought-out consequences that are stretched out over time, often involving formal and time-consuming processes before they can be implemented? Our notions of right and wrong, of acceptable and unacceptable behavior, are conditioned by those instant responses to the choices we make. In those situations, it is impossible to escape personal responsibility. The nexus between what we did and the response is much too close to permit our minds to justify our acts or to lay responsibility on the shoulders of others.
Formal “punishment,” on the other hand, is a time-consuming process (whether we’re talking hours or years), which allows just such rationalizations to occur, rationalizations which undermine its very purpose — or, at least, the purpose we want to believe it accomplishes. Like Dennis standing in the corner, those we process through our formal system of punishment (for crime) are so far removed from the precipitating cause of the system’s response, they are easily able to recast themselves into the role of victims. And, indeed, they are not wrong. Now, stripped of power to do anything but respond to officials, they are subjected to the indignities that those with newly acquired power over their lives routinely subject them to.
I spend hours every week conducting writing workshops in county juvenile halls where teenagers are routinely sent to “punish” them for selling drugs, for engaging in gang activities, and for carrying and using guns. And yet, though they know they are there to be “punished,” when told what to do by staff every minute of the day (and often subjected to the arbitrary misuse of this corrupting power), these young “criminals” write almost exclusively about how they are victims of the system, about how they are “being played” — by the cops, by the courts, by the counselors, by “the system.” It’s a very rare individual who actually ponders the relationship between the specific acts leading to these long-term consequences and the degrading powerless position they now occupy. Even the ubiquitous “Do-the-crime, do-the-time” response is nothing more than a cliché that prompts no real sense of personal responsibility, the sine qua non of successful punishment, where success is defined as moderating future behavior.
Perhaps it is this disconnect that leads to such astonishing rates of re-offending when it comes to California’s juvenile detainees. According to the California Division of Juvenile Justice, “70% of state-committed youth are re-arrested within two years of release.” (http://www.cjcj.org/pdf/CJJRPBrochure.pdf) The actual rate of recidivism must be even higher, since so many perpetrators escape detection and, therefore, punishment.
No private company — indeed, no other government agency — could long survive with such rates of failure. Yet, we continue this failed structure of crime and punishment year after year after year. Which leads back to the original question inspired by that Dennis The Menace cartoon: What is the nature of punishment? If the system does not work to end or seriously curtail the behavior we claim we are trying to affect, then why do we keep doing it?
The answer might have more to do with us, the punishers, than with the punished. Perhaps we derive some unacknowledged — even unconscious — satisfaction in the suffering of others. Or, perhaps it’s not their suffering we desire as much as the sense of control we gain from exerting official power over others. Maybe the motivation is even deeper, even more sinister, lodged in our reptilian brains, human traits we would rather not explore because they reveal more about us than we want to know.
These are questions without answers, reflections on a topic that we seldom ponder. If we’re serious about creating a safer society, it’s way past time for such serious reflection.
Whatever the season, the day of an execution casts a pall on everything. The prison fortress looms even more oppressive than usual (more so because it has been scrubbed clean for the media visitors who will attend the night’s poisoning). The dark, cold waters that surround Point San Quentin on which the ancient buildings sprawl, are alive with small boats whose colorful sails billow in the wind, while white ferry boats with red and blue trim carry loving families (oblivious to the preparations going on behind the crumbling red brick walls) to and from the picture-perfect post card that is San Francisco, which seems almost within reach across the Bay.
I had arrived early for the day-long wake, presided over by the nearly dearly departed, who would cease to exist at one minute past midnight, a ritual that occurs in the hours before every legal killing the state carries out. Others came and went throughout the day: the black-clad sob sisters who had to be escorted out; the lawyer-in-name-only who spent less than twenty minutes, before she embraced her client for the last time, never taking off her expensive black leather jacket; the prison psychologist who cleared the room while he conducted his final interview to determine whether Jaturun, the death row monk, was sane enough to be killed; the collection of Buddhist friends he had acquired through the years; even prison staff who had come to rely on his tranquil personality to calm the passions in that world apart (passions that ran as deep as the dark Bay waters on the other side of the walls).
I had known Jay for years, had worked on his legal team to undo his death sentence, had spent weeks in the sweaty, filthy streets of Bangkok where he had grown up, had interviewed his weeping brothers and sister, abandoned by their mother as children, had poured over documents in the National Library until finding the Amnesty Proclamation absolving Jay of guilt for the teenage burglary that had been the necessary predicate to seek death in the murder case that was yet to happen, had secured a statement from the King himself urging clemency, had even persuaded the just-retired warden of San Quentin (a man who, seven years earlier, had personally pulled the lever, plunging the cyanide pellets into the vat of acid under the chair that Robert Harris was strapped into, releasing the gas that would choke him to death), yes, even he joined in the chorus to spare Jay’s life.
Now, just minutes before 6:00 p.m., when all visitors would be escorted out of the building and down the long walkway bordered by well-tended flowering shrubs to the parking lot just beyond the concrete cinder block building that all visitors had to pass through, the awkward moment that all our efforts had failed to prevent was at hand. Only a few of us remained to say our final good-byes. On a small plastic table in the corner, the fruit, chips and sodas supplied by the prison for our comfort remained untouched.
I sat next to Jay at the heavy wooden table that dominated the small, windowless room, scarred by the carvings of thousands of prison visitors over many decades. He asked us to take each other’s hands, smiling in that quiet, calming way he had.
“Only my body will die tonight,” he said, intending for that to comfort us. “My soul will return in another form. Look for me in your gardens. I will come to you as a butterfly.”
I forced the tears back down through the ducts that emptied into my eyes, forced a smile, and squeezed the diminutive fingers that rested in my large hand.
Later, when it was done (always in the name of the People of California of whom I am one), I could not find a Buddhist place in my heart to cope. I had to get away, to separate myself from human life so as not to reveal the bile that had been welling up for days, and which now threatened to explode out of me. I drove to the desert, arriving late at night. Under a brilliant star-lit sky, I pitched my tent and burrowed deep into my sleeping bag, the total darkness mirroring my mood.
Early the next morning, I opened the flaps of my tent and looked out toward the horizon where a brilliant sun was breaking over the vast emptiness that lay before me and all around me. A short distance away, a small tree stood alone on a hillock, the only elevation visible, and it drew me to it, like water after a drought.
I climbed the hill and sat under the tree, surveying the endless landscape that had seemed so barren of life, but which was dotted with strong, low-lying plants that had long ago adapted to the arid environment.
Suddenly, I was aware of something flying at the periphery of my vision, like a fleeting shadow, and a thought came to me, as if I had pulled it from the still air, a thought which defied my bitter cynicism: “It’s Jay’s butterfly!”
And then I saw it. It circled once around my head, and lit on my wrist. I looked down to see a yellow-jacket cleaning its wings on my arm!
For the first time in a long, long time, I smiled a genuine smile, and spoke out loud to the wasp. “Keep trying, Jay; you’ll come back as a butterfly, yet.”
I sat in silence, glaring at Dr. Andrews, wishing I had never come. A cheap white egg timer with one of those wind-up dials sat on an end table next to the green naugahyde leather chair that he sat in, legs crossed, and audibly ticked away the seconds that Judith was paying for. Neither of us spoke for what seemed like an eternity, and then the prompt: “But why did you laugh?” Dr. Andrews asked me. He had read my sad account of flight into the desert following Jay’s execution. “What’s so funny about a yellowjacket landing on your arm?”
“I don’t know. Maybe it was just… I don’t know.”
“Whenever a patient of mine says ‘I don’t know,’ I know we’re close to something important. So let me ask you again, what about that situation made you laugh?”
I thought, do I have to replay all of that again? Doesn’t he understand what I’ve been through? “I didn’t really laugh,” I said, “I just smiled, that’s all.”
“But you used the word “genuine” when you described that smile. I take that to mean you are contrasting that smile with previous smiles. Why? What made this smile ‘genuine’ and other smiles fake?”
He’s either dense as fuck, I thought, or he’s enjoying this. “I hadn’t thought of it that way, but maybe you’re right. I guess what I mean by ‘genuine’ is that all the smiling we did in that room, all those little jokes we told to make Jay laugh… to make ourselves laugh… It’s like how I imagine it must be if your friend’s dying of AIDS, or something. You don’t want to sit around an’ just cry, even if that’s what you feel like doing. You want… I don’t know… You want to keep things light, ‘cause otherwise, you get crushed by the dark, and that doesn’t help your friend at all.”
“Why did you choose AIDS as your example?”
“You’re missing the point, Doctor. I could have picked any end-of-life disease. Cancer. Okay? Let’s say cancer.”
“But you didn’t say cancer. You said AIDS.”
Fuck! I knew this was crazy! I told Judith I didn’t need to talk to anyone, but she… Well, she pays my salary, so when she tells me to talk to someone…
“Forget the fucking AIDS,” I said, wanting to scream at him. Strangely, though, the words came out not as an explosion, but like pellets, each syllable compressed into its own hissed and voiceless scream. I wanted to run from the room.
“I wanted to run out of that place,” I said, “but I couldn’t. I couldn’t abandon him. I was with him for so many years. I knew so much about him. I knew his mother and his siblings. I got to walk around in that disgusting whorehouse where he was raised by that uncle who, even then, even with his nephew on death row, tried to extort money from me. I couldn’t run. I had to stay and pretend, pretend to smile and laugh, pretend that nothing was going to happen, pretend that I wasn’t looking at my watch. But I was! While I was laughing, I could see that relentless second hand moving forward, moving him closer to being nothing but a memory…”
“That’s another interesting choice of words,” he began, but I continued as if he was irrelevant.
“Nothing! Nothing but a story. I hate telling the story. I hate it! It’s like I’m using him. Like the lawyer that showed up for twenty minutes so she could tell her friends about it. I actually heard her telling another lawyer later, after it was done, that ‘They had to rip him out of my embrace.’ Fucking bullshit! Bullshit! She was there for twenty minutes! She never even took off her jacket. She wasn’t even there when they took him away in chains. Nobody ripped him from her arms. Nobody ripped him from anybody’s arms. She stayed for twenty minutes, shook his hand and told him what a wonderful man he was. Then she left. But she got her story. Just like me!”
“Why do you think you have so much anger about the lawyer? Do you blame her for failing to save him? Could she have done more?”
“Are you displacing anger at your own failure onto his attorney?”
“My failure? Yes! Yes! And not just mine, all of ours. We all own this failure. That attorney least of all because she was only his attorney in name, not in fact. She did nothing but talk about the case. It was others, many others, who did the work. And yes, we failed… I failed.”
I waited. I imagined him saying, “That’s an interesting word, ‘failed.’ Why do you think you failed?” But he said nothing. I could feel my heart beating high in my chest, see my pulse pumping hard in my wrist. I waited, trying not to focus on that ticking egg timer.
“You were telling me about your failure,” he said.
“My failure, your failure. Everybody’s failure. They killed him. We killed him. He was alive and vibrant, and then he was dead, and we did it.”
“I didn’t do it,” he said, an edge of defensiveness creeping into his voice. It gave me the feeling of being in control, for the first time since he asked me to sit opposite him, and set that timer to one hour. This was territory I knew. He uncrossed his legs.
“Yes, you did it. Everyone in this state did it. It’s always done in the name of the People of California. Aren’t you one of those?” I wanted to smile — not a “genuine” smile, the way our conversation had begun, but a smug, “I got-you-motherfucker” smile. But I knew what he would do with that, and I kept my professional face on.
“Okay,” he said. “If that makes you feel any better. Can we talk about the yellowjacket now?”
“What about it?”
“Yes, exactly. What about it?”
“Well, it made me smile. He was a Buddhist, see? He thought he’d come back as a butterfly. He TOLD us he was coming back as a butterfly. But he came back as a yellowjacket. It’s funny.”
“Why is that funny? Do you believe he was reincarnated as a yellowjacket?”
My God! Where did Judith find this guy?
“Yeah, sure I believe he came back as a wasp,” I said, watching for some reaction to my absurd answer to his absurd question, but his thin, angular face betrayed nothing of what he was thinking.
“Of course I don’t believe he came back as a yellowjacket. That’s what makes it funny.”
“I don’t get it,” he said, perhaps honestly. “Would you think it funny if it had stung you?”
“No. No. I don’t get it, either,” I said, “I don’t get it at all.”
Michael Kroll, Pacific News Service, Jan 14, 2005
Editor's Note: Donald Beardslee's execution, scheduled for Jan. 19 by lethal injection, will resemble a ritual sacrifice with predictable, longstanding roles for all the actors. The only player missing, the writer says, is reason.
As the execution of Donald Beardslee looms in California, I've been wondering what argument for or against the death penalty hasn't already been made thousands of times before.
It's true that some circumstances have changed. For example, we have a new governor who takes a more nuanced view on matters of criminal justice than his predecessor. Also, polls show that the public may be gradually losing the taste for capital punishment.
But the honest, though depressing, answer to my question is: nothing has really changed. The death penalty in America is little more than a ritual sacrifice in which various participants -- including me, the crusading abolitionist -- assume their predictable roles.
Beardslee's execution, if it goes forward, will be the 11th since California resumed capital punishment, so all the factions know the routine.
Those organized for the death penalty will do what is expected of them. The District Attorney will describe the condemned as a poster child for capital punishment, and count the number of judges who have reviewed the death sentence and upheld it. He (or she) will talk about "finality," and urge that "justice requires nothing less than death."
The Internet will be filled with casual calls for the condemned's death by the general public. On a website titled, "Pro-Death Penalty.com," some rail at the 9th Circuit Court of Appeals, as in this recent posting: "They would pardon someone if there was fly poop on the trial transcript." Others make their point as simply as, "A needle is waiting for him at San Quentin."
Still others urge us to "Think of the victim." That is the "generic" victim, because except in extraordinarily high-profile cases, most people cannot tell you the name of the victim that they're asking us to "think of." (How many know the names Paula Geddling and Stacey Benjamin? They were Mr. Beardslee's victims.)
The family of the victim will have their few minutes of fame (and soon be forgotten). They will talk about the "closure" that proponents of the death penalty falsely promise, and about how long they've waited for this moment.
Those organized against the death penalty will do what is expected of them. They'll send out "Action Alerts" calling on their constituents to write Gov. Arnold Schwarzenegger to urge him to grant the condemned clemency. They'll cite the reasons why this defendant's life should be spared. ("Mr. Beardslee's actions were controlled by severe brain damage that has impaired his functioning since birth," the anti-death penalty organization Death Penalty Focus stresses in its "Urgent Action Alert.")
Churches will call on their parishioners to oppose the execution based on Jesus' teachings. The organization California People of Faith Working Against the Death Penalty urges its members to write the governor to oppose Beardslee's execution. Their model letter begins: "I have great sympathy for the victims of violence, and admiration for those who rise above humanity's basest instinct for revenge to respond to violence with wisdom and compassion."
And then, assuming all efforts to stop the execution fail, they will all gather outside the gates of San Quentin for the ritual that takes place in the dead of night. All the factions know the drill: where to stand, what to sing, where to set up the speaker's platform, where the cameras will be. Everyone has his or her role to play.
The media have their turn to do what they do. On the evening news, the same question will be answered by proponents, opponents, family members of the victim, family members of the condemned. The question is: "How do you feel...?"
And then, if the collective homicide is carried out (at one minute past midnight), the various factions will react predictably: the proponents will cheer; the opponents will lower their heads and cry; the media will pack up its klieg lights and cameras; and we will all go back to our more mundane lives until the next ritual killing is scheduled, when we can once again fill our expected roles.
I have been writing against the death penalty for nearly 50 years (beginning with a letter to the editor when I was in the seventh grade). The truly depressing thing about that is that nothing I write today is different from anything I wrote then. The death penalty is still morally flawed, racially biased, reserved for the poor (but grossly expensive to carry out) and subject to human error. We still stand alone among first-world nations to retain this legacy of a less civilized past. And, in a practical sense, the death penalty is utterly unnecessary in the era of Life Without Parole.
And yet, after these years of words and more words, nothing seems to change. Rationality does not persuade. The ritual sacrifices will proceed. As I make my way to my expected spot to mark the last hours of Mr. Beardslee's life, to play my part as one of "the people" in whose name this killing is taking place, I will be thinking of the poem "Killers," written more than 80 years ago by the great American poet Carl Sandburg about an upcoming execution in Chicago: "There are five million people in the state, five million killers for whom I kill/I am the killer who kills today for five million killers who wish a killing."