America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

The Unseen Anguish of a Death Sentence

Jury box
Wounds heal. Harsh words are forgiven. Even the searing pain of a great loss eases with time. But when I sentenced a man to death over two decades ago it changed me in fundamental ways that continue to haunt me today.

I served as a juror in Bobby Wilcher’s resentencing trial in Mississippi in 1994. Wilcher was a cruel person who brutally killed two women in 1982. His guilt was never in doubt. I voted for a death sentence for Wilcher, as did all of the other jurors. He was executed in 2006. Every day since his trial I have tried to understand why my role in his death has left me scarred.

In the course of my journey, I have sought out and spoken to many of the jurors who served with me on that case. I have also talked about my experience to a documentary filmmaker, Florent Vassault. Those conversations have helped me to heal, if only because I now realize that the death penalty is disturbing to many people, and the damage it can do radiates in ripples of sorrow that can affect everyone it touches.

I have not always felt this way. As a Baptist and a conservative, I believed the death penalty was a proper punishment for some people. I believed that serving as a juror in a capital case was a civic duty that helped maintain the order of society.

Since then, I have learned a lot about the death penalty. As jurors, we were never told that the death penalty is only regularly practiced in a minority of states, and that even within those states only a few counties produce most of the death sentences. We did not know that most murderers never face the prospect of a death sentence, or that the public was moving towards a sentence of life without parole over death.

We did see first hand how a man’s life can rest in the hands of his lawyers, who sometimes fail to adequately defend their own client. And Wilcher was no help in that he showed no remorse. The choice for us as jurors was a simple one: Is this crime so terrible and the person so irredeemable that he should die?

It also did not occur to me at the time that handing down a sentence of death would change the way I see myself. Why would I be left with a feeling of guilt and complicity when it was Wilcher who had brought such harm upon two innocent people, and the community?

Over the past few years, I have traveled to the places where my fellow jurors now live. Some offered me understanding and tried to lift my burden. Some were burdened themselves. The death penalty is still the law in most of our states, but very few voters give much thought to how the death penalty affects those who become, even briefly, part of this system. Judges, lawyers, prison guards, families of the victims and families of the condemned — along with ordinary jurors like myself — are swept into a world where judgments of death are handed down, but everyone else is expected to emerge untouched.

One of the most difficult parts of my journey was reaching out to Bobby Wilcher on death row. He accepted sole responsibility for his crime and the sentence he was given. I visited him just before he was to be executed. I saw him as a fellow human being, flawed but caring, even towards me.

Recently, I have heard of another approach to crime called restorative justice. This is not about ending prisons or eliminating consequences for those who do harm. It takes the whole community into account in responding to offenders. Victims and their families are part of the discussion. What should happen to this defendant to make our community safer, both for the short term after a crime has been committed, and in the long term, even for those who may never be released? What is my role and the role of my church when people break the law? I am going to try to find out more about this approach.

If I was called to serve on Bobby Wilcher’s jury today, I could not sentence him to death. I say this not because of what I learned about him before his execution, but because of what handing down a death sentence can do to people like me. I no longer feel as guilty about my decision in Bobby’s case, but I wish I could have foreseen how it would affect me and my loved ones for the rest of my life.

Source: Medium, Lindy Isonhood, July 2, 2018. Lindy Isonhood’s story will be told in the POV documentary ‘Lindy Lou: Juror Number 2’ on PBS television and on pov.org on July 16, 2018.

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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