All through the summer of 1983, Jody Pope worked the streets of downtown Raleigh, peddling his wares and trying to stay one step ahead of the authorities. Jody was maybe 60 years old, with pale, yellowish hair pulled back in a ponytail, and a Betty Boop tattoo on his left biceps. He traveled light, selling cigarette lighters one day, a rack of no-iron short-sleeved men's dress shirts the next. I was working on Fayetteville Street Mall that summer, and one rainy afternoon he sold me a plastic poncho. I never bought anything else from Jody, since his inventory depended on contingencies I preferred not to think about, but we became friends anyway, and he began to solicit me to write his life story.
Jody had sure enough seen some things: A saucer hovering over downtown Memphis, a lady preacher with a birthmark the shape of a crucifix, a man who tried to drown himself in a margarita. When he was 15 years old, Jody said, he went to work on a fishing boat off the Florida coast and never went home again. I asked him why and he said it was on account of his daddy beating him all the time. He pulled up the cuff of his jeans and showed me the back of his leg, where scars crisscrossed in fine ridges, like patterns in sand.
At first, Jody said, his daddy used a belt with a big, turquoise-studded buckle, and Jody got whipped for all transgressions, no matter how minor. Jody was smart, though. His daddy was cottonmouth-mean when he was sober, but when he drank he became contrite. Jody worked on him, and over the years he won some concessions: By the time he turned 10, only certain transgressions warranted a whipping, and Jody was allowed to pick his own switch from the trees out back.
So, I asked him, did that make it alright? "No ma'am, it did not," Jody said. "When you get whipped like that, it works on your spirit. It don't matter how you whitewash it, it's a sin. Trading off a belt buckle for a willow switch like my daddy did, that was just cleaning up Cain."
Cleaning up Cain. An interesting turn of phrase, and one that's come to mind several times in the last few months. I thought of it, for instance, two months ago, when Orange County Superior Court Judge Wade Barber temporarily halted the execution of Bobbie Lee Harris only two days before it was to occur. Because Harris may have committed his crime on federal property, Barber decided to stay the execution until a hearing could be held to determine whether Harris was improperly tried and convicted in state court.
I thought about it again in February, when a Durham judge delayed the execution of Ernest Paul McCarver, who tested mentally retarded shortly before his execution date. After the state Supreme Court overturned that ruling, the U.S. Supreme Court stepped in to reinstate the delay in order to give itself time to decide whether to take the case.
And finally, I thought about it early this month, when Wake County Superior Court Judge Howard Manning Jr. stayed the execution of convicted killer Willie Fisher, on the grounds that Fisher's clemency appeal was improperly handled by Gov. Mike Easley. Fisher's lawyers argued that Easley faced a conflict of interest, since he had opposed Fisher's appeal as state attorney general. Manning's ruling came only four hours before Fisher's scheduled execution; it took only a few more hours for the state Supreme Court to overturn the delay. Fisher was put to death roughly 19 hours after his original execution date.
These legal maneuvers--and the unusual happenstance of three 11th-hour stays of execution in two months--left many people uneasy. Some judges and prosecutors, in particular, are upset that defense lawyers went knocking on the doors of trial judges when the ordinary appeals process failed to give their clients relief. They've criticized the defense lawyers involved for judge-shopping and manipulating the system inappropriately. "It's not any way to handle the law," Chief Justice I. Beverly Lake Jr. told The News & Observer. "I understand that it is a matter of life and death. ... But it certainly does make for a disorderly, disjointed, stress-filled procedure."
If I had to guess, I'd say that Lake and other critics are agitated not only on behalf of the legal system, but because they suspect that defense lawyers are trying to buy time until a landmark legislative decision is made. In the last five years, a rather unusual death-penalty reform movement has taken shape, both nationally and in North Carolina. Opposition to capital punishment has for decades called attention to specific flaws in and questions about its application--legal errors, for instance, or the role of race, or doubts about guilt. But those flaws and questions were always an underpinning to the real issue, which was the fundamental immorality of state-sanctioned killing.
The current reform movement is much more pragmatic--at least on the surface. And it's gotten the attention of politicians who've long considered capital punishment an easy issue. Here in North Carolina, lawmakers have created a study commission to examine the reliability and fairness with which North Carolina courts impose capital punishment. Specifically, the commission is examining the role of race in capital convictions, and whether it is appropriate to seek the death penalty when a defendant is mentally retarded. Depending on the commission's findings, legislators may enact a state-wide moratorium on executions until problems can be fixed.
In the context of the proposed moratorium, the recent stays in execution make me uneasy too. Not because of defense lawyers' last-minute appeals to trial judges to halt their clients' executions. In the first place, that's the job of a good attorney; in the second place, with appellate courts disregarding more and more legal errors in capital cases, you can hardly blame defense lawyers for searching out other venues for relief.
What makes me uneasy is that some of the purported goals of the moratorium might be reached. Flaws might be dealt with, problems ironed out. What happens then? I remember talking to Mike Roark, a death-penalty opponent who died two years ago, about the consequences, in the last half of the 20th century, of introducing lethal injection as an alternative to the time-honored, and ostensibly more gruesome, forms of execution. Roark said that many death-penalty opponents had pushed for the change to lethal injection, believing that an examination of the ways the government killed death-row inmates--hanging, electrocution, gas, firing squad--would convince people that state-sanctioned killing was so hideous there was no simply no humane way to do it.
Instead, Roark said, supporters of capital punishment used lethal injection as a selling point--as the answer to the problem with the death penalty. "All it really was," Roark said, "was a way of answering one question, but not the big question. It was a kind of sanitizing."
This is my worry, that supporters of capital punishment will use death-penalty reform to sanitize the process, to relieve uneasy feelings--and eventually to justify the continued use of the death penalty.
It is true that, at least in North Carolina, legislators have traditionally balked at reform measures that would make the application of the death penalty less arbitrary and more fair. Just last year, two pieces of legislation that would have addressed some of these practical concerns failed: One bill would have allowed courts to set aside convictions based on race; another would have banned capital punishment when a defendant is mentally retarded.
But public opinion about the death penalty continues to change, reflecting concern about the flawed processes by which North Carolina puts people to death. Several polls, national and local, show a majority of voters favoring both reform of the death penalty and a ban on executions until questions about fairness can be answered. Faced with this shift in opinion, politicians may soon feel the need to re-examine bills like the ones they voted down last year.
Supporters of a moratorium in North Carolina include a handful of capital-punishment proponents who genuinely believe government-sanctioned killing is appropriate, so long as it is properly applied. The majority of moratorium supporters, though, like those death-penalty opponents who pushed for lethal injection, hope the process of trying to reform the death penalty will lead to its eventual abolition. It's hard to see how it couldn't. The flaws in the system by which the state imposes death are myriad and Byzantine--and complicated by emotion. Is it possible to eliminate racial prejudice? How do we define effective legal representation for poor defendants, or measure mental retardation? Can we, in every capital case, be absolutely sure of guilt?
The flaws in the death-penalty process seem intractable, yet already there are inroads into some of these quandaries. The General Assembly recently passed legislation authorizing a committee to oversee the appointment of experienced defense lawyers for indigent clients in capital trials. Advances in deciphering DNA evidence continue to erase doubt and prove innocence or guilt. And there's a push to set guidelines for determining mental retardation.
Proponents of capital punishment, unresponsive to arguments that the death penalty is immoral, may seize upon the new, practical approach to "fixing" the process. They may reason that public opinion has made the death penalty assailable for the first time in decades, and that the more the process is cleaned up, the less vulnerable it will be.
Whether this happens remains to be seen. In some ways, the effect of the new reform movement has been to lay a chess game, with each side called upon to employ strategy and nerve. If the movement succeeds, there are bound to be some Gordian legal and procedural questions, and lots of fancy political footwork. With any luck, legislators will pass a moratorium that will give North Carolinians space and time to examine what it means to support state-sanctioned killing. Mustering all optimism, it's possible to imagine voters deciding to call a permanent end to executions. It's also possible that the best we can hope for is to make improvements and create remedies that ensure a greater measure of fairness and humaneness. In other words, to clean up Cain.
Jody Pope and I had very little in common, but we were both fans of Truman Capote's In Cold Blood. Jody fancied himself a wandering artist--just like Perry Smith, one of the two killers whose execution Capote describes at the end of the book. "Course, I never murdered anyone," Jody told me reassuringly, "but I liked Perry Smith. How there was something about him, you know, something good, despite what he did. Plus which, I liked what he said right before they hung him."
I went back to look at those passages recently, because I remember liking them as well. On the night of his execution, Capote writes, Smith entered the warehouse gallows in a Kansas state penitentiary and glanced gravely at the hangman, perched on the gallows platform. Asked if he had any last words, Smith looked down at his manacled hands. "I think," he said, "it's a helluva thing to take a life in this manner."