Fair and impartial aggravated murder
by Staughton Lynd
March 28, 2007
On Friday, March 16, Governor Strickland denied clemency to Kenneth Biros.
Commenting to the Associated Press, Mr. Strickland said he has no intention of placing a moratorium on capital punishment in Ohio.
He also said, according to the AP, "that he is open to new information on the matter, but for now is satisfied that Ohio has a fair and impartial system."
Profile in Lack of Courage
"No person shall purposely, and with prior calculation and design, cause the death of another . . . ." This is the definition of "aggravated murder" in section 2903.01 of the Ohio Revised Code.
An execution is a killing with prior calculation and design. There are approximately 195 men on Ohio's Death Row. Thus when Mr. Strickland denied clemency to Mr. Biros and, at the same time, appeared to shut the door on a moratorium, Ohio missed an opportunity to prevent what could amount to as many as 195 aggravated murders.
Strickland denied clemency to Biros at a time when other governors, in other states all over the country, have taken at least a first step toward stopping executions. In Illinois, California, Florida, Tennessee, New Jersey, North Carolina, and Missouri, governors did more than Ohio's governor saw fit to do. And this comes in the context that in recent years Ohio has been second only to Texas in the number of human beings it deliberately put to death.
Ohio? Where Clarence Darrow was born (in Kinsman) and John Brown grew to manhood (in Hudson)? Ohio? The red state of the North? As if it were not enough to have thrown the 2004 election to George W. Bush, the state in which we live now firmly declines to join the nationwide trend toward abolition of state-sponsored aggravated murder.
These questions burden the mind as I contemplate the forthcoming presentation of a play, "Lucasville,
Along with Gary L. Anderson of American Legends Theatre Works, I am a co-author of the play. Gary is a professional theater person who does a wonderful one-person show about Clarence Darrow, who saved 102 defendants from being sentenced to death. Except on opening night in Portsmouth, at each stop "Darrow" will be presented in the afternoon before "Lucasville" is performed in the evening.
After each performance of "Lucasville" I will lead a discussion with any members of the audience who are interested. I will assure folks that the action and dialogue of the play are drawn almost entirely from trial testimony, trial exhibits, and affidavits. My wife, attorney Alice Lynd, is compiling a notebook containing a sample of these underlying documents.
Hopefully at least some persons will pose the question, "What can we do?" For them I have a simple petition to Governor Strickland used by the Catholic Diocese of Youngstown. The petition says:
- Dear Governor Strickland:
We, the undersigned urge you to call for a moratorium on executions in the State of Ohio.
We are opposed to the use of capital punishment.
We deeply sympathize with the families and friends of the victims of violent crime. We respectfully offer that additional death will not heal or resolve these tragedies.
As an historian, I have had occasion to try to understand where slavery, racism, and the thirst to kill come from in this country.
Begin with the fact that in May 1787, when the Constitutional Convention assembled in Philadelphia, twelve men in London founded the British anti-slavery movement. The movie "Amazing Grace" tells the story, albeit from a topdown point of view. As Thomas Clarkson and his friends set in motion the first-hand investigations and petitions to Parliament that caused the British slave trade and then slavery in the British West Indies to be abolished, the great white men of the United States gathered for a Constitutional Convention that recognized and compromised with our peculiar institution. I have called it "the compromise of 1787," preceding the better-known compromises of 1819 and 1850.
Meeting in New York that summer, the Continental Congress passed the so-called Northwest Ordinance. This document banned slavery north of the Ohio River. But it was understood at the time to be a "Southwest Ordinance" protecting slavery where it existed and was expected to spread.
The Northwest Ordinance contained the first national fugitive slave clause. When it passed, a number of men abruptly departed New York to carry the news of the Ordinance to Philadelphia, where the Constitutional Convention adopted the identical fugitive slave clause a few days later.
These fugitive slave provisions were expected to be implemented. A few years later, when President George Washington was in Philadelphia (then the nation's capital), a slave named Ona Judge who helped Mrs. Washington to dress her hair and put her clothes on, ran away. The Washingtons spread the rumor that Ms. Judge had been seduced by a French sailor. There was no French sailor. Ms. Judge ran away on her own, and left to posterity the words that she wanted to be free and wanted to learn how to read and write. The Father of Our Country wrote to the customs collector in Portsmouth, New Hampshire, directing him to kidnap Ms. Judge and put her on a ship bound for Virginia. Instead, that man sent Ms. Judge a note, warning her to get out of town. As far as we know she remained in freedom.
The best explanation for Governor Strickland's action is that the tide of migration to the Southwest (which Southerners expected to give them control of the national government) flowed across the Ohio River into southern Ohio, Indiana and Illinois. Cincinnati became the racist city it has been for almost two hundred years, presently providing one fourth of the men on Ohio's Death Row. The Indiana towns across the river from Louisville, where my father grew up, and Alton, Illinois, where antislavery editor Elijah Lovejoy was murdered, became similar hotbeds of violence.
Another tradition also took root in these Ohio River towns. Ripley, Ohio, halfway between Cincinnati and Scioto County (where the town of Lucasville and the Southern Ohio Correctional Facility are located), was the scene of an antislavery movement that began ten years before William Lloyd Garrison first published The Liberator. As described in Ann Hagedorn's book, Beyond the River, it was at Ripley that the most famous incident later recounted in Uncle Tom's Cabin -- "Eliza crossing the ice" -- actually occurred.
At that time abolitionist John Rankin had a house on a hilltop above Ripley where he left a lantern on all night. It is said that when Eliza and her infant child reached the northern shore of the Ohio, soaked and freezing, they were met by a professional slavecatcher named Shaw who seized escaping slaves and returned them to the South for money. Mr. Shaw is said to have been so moved by Eliza's bravery that he pointed up the hill to the light from the lantern, and told her to go there for help.
Alas, Governor Strickland thus far appears to lack the courage of that slavecatcher. It is really preposterous that he should find the trials that followed the 1993 uprising at the Southern Ohio Correctional Facility in Lucasville to have been fair and impartial. There was no physical evidence. Convictions depended entirely on the testimony of prisoner informants, or "snitches," who received benefits like not being charged, or a letter to the Parole Board, in exchange for saying what the prosecutors wanted them to testify. As I show in my book Lucasville, from their first conversations with prisoner witnesses, the prosecutors and troopers of the Highway Patrol deliberately framed several spokesmen for the prisoners.
Tragedy or Melodrama?
What really happened at Lucasville in April 1993? We know the externals. Prisoners occupied L block for eleven days. Ten persons (nine inmates and one hostage correctional officer) were killed by the rebelling prisoners. The siege of L block ended peacefully when Attorney Niki Schwartz of Cleveland helped the rebels to negotiate a 21-point agreement. Thereafter, in trials lasting into 1996, five supposed leaders of the rebellion (the "Lucasville Five") were sentenced to death.
I drive attorneys for the State frantic by refusing to use the word "riot," referring instead to an uprising or a rebellion. I protest the words of Judge Fred Cartolano in the trial of Siddique Abdullah Hasan: "Riots are not created by the prison. Riots are created by the inmates." State v. Sanders, Transcript p. 5332. I remind readers or listeners that before the April 1993 events, the Southern Ohio Correctional Facility allowed prisoners one five-minute telephone call per year. Even a defendant in a homicide arising from a barroom brawl, I argue, would be allowed to present evidence of provocation.
But I do not think Lucasville was a melodrama, with the good guys all on one side and the bad guys all on the other. No one intended what actually occurred.
The Muslim prisoners who first seized officers in L block and made them hostages had in mind a brief, bloodless disturbance. They hoped to catch the attention of authorities in Columbus and cause them to overrule Warden Tate's insistence on testing for TB by injecting under the skin a substance containing phenol, a form of alcohol.
Within moments, events spun out of control. What all witnesses describe as "chaos" ensued. Officers were severely beaten. The prisoners in rebellion thought several of the injured officers might die, and went to some risk to take them to the yard where they could be recovered and receive medical attention. Warden Tate had encouraged informants, even creating a special Post Office box to receive their communications. Six supposed "snitches" were murdered by fellow prisoners during the first hours of the uprising.
The prison administrators created their share of unintended consequences, too. As Sergeant Howard Hudson testified, their hostage negotiating manual directed that prison negotiators should deliberately stall in order to wear down the resistance of the hostage takers. The same approach caused the authorities on the first full day of the occupation to turn off water and electricity. Three days later, the authorities' refusal to restore these utilities became the immediate cause of hostage officer Robert Vallandingham'
I have come to believe that there were individuals on both sides during the eleven-day rebellion who sought to avoid bloodshed. (The behavior of prosecuting attorneys and judges after the surrender is another matter.) In negotiating a settlement and a peaceful surrender, the Lucasville protagonists brought their confrontation to an end with significantly fewer deaths than in earlier prison rebellions at Attica and Santa Fe.
The behavior of the prisoners might be compared to the actions of soldiers pinned down by enemy fire on an unexpected battlefield. Most of the 407 men in L block, including some of the alleged leaders, had nothing whatever to do with starting the rebellion. Their motivation in staying in L block was to protect their property and to help fellow prisoners survive. What distinguished some from others, again as in a foxhole under fire, was whether they thought mainly about themselves or guided their actions by the perceived welfare of the entire convict body.
This understanding of the Lucasville events is what leads me to propose a general amnesty, as at Attica. Case by case adjudication of individual guilt or innocence misses the essential character of the tragedy. Those convicted of murder, assault, or kidnapping have already served almost fifteen years in solitary confinement. It is enough.
Life Without Parole?
Even if the Lucasville defendants sentenced to death should one day be found Not Guilty, and set free, a troubling question remains.
What should happen to death-sentenced men who are guilty of murder? They may have committed terrible rapes and homicides years before they finally are strapped to the gurney at the Lucasville death house.
Sister Helen Prejean, the Catholic Church, and (if I am not mistaken) the American Civil Liberties Union, propose life without parole as an alternative to execution. Many death-sentenced men whom my wife and I have come to know disagree. They say to us, "If I am to be totally deprived of any hope of ever being free, kill me now."
It seems to us, as Quakers, that there is in every human being the possibility of change, of redemption. But no one has a crystal ball or measuring instrument that makes it possible to know for sure when such change has truly occurred.
In our society, persons who were poorly educated, had a hard time finding work, and then committed a crime, "max out" or are paroled even less prepared to obtain a livelihood and live a normal life. In Boston last fall, a questioner asked about persons who are psychologically unprepared for freedom and likely to repeat the crimes that landed them behind bars. As I pondered a response, another member of the audience volunteered an answer. He said he had spent most of his life in maximum security prisons. In his opinion, some prisoners need mental health assistance before they can be safely released. But prison, this man emphasized, helps no one.
Support for the death penalty being so strong among persons who also call themselves fervent Christians, I have had occasion to propose what I call "the prison program of Jesus of Nazareth." It has three parts.
The first is the instruction in Matthew 25: "I was in prison and you visited me." Personal acquaintance with prisoners is the beginning of wisdom in these matters.
The second part of the program is the incident recounted in John 8. A woman was caught in the act of adultery, which in ancient Israel was punishable with death by stoning. Jesus said, "Let him who is without sin cast the first stone." The death squad slunk away, shamefaced and conscience-stricken
The most challenging part of the prison program is the third. Luke 4 tells the story of Jesus' first public ministry. He stood up in the synagogue at Nazareth and read from the scroll of chapter 61 of the prophet Isaiah:
- The Spirit of the Lord God is upon me;
because the Lord hath anointed me to preach good tidings unto the meek;
he hath sent me to bind up the broken-hearted,
to proclaim liberty to the captives,
and the opening of the prison to them that are bound.
A first step toward the society envisioned by Isaiah and Jesus is to end the death penalty.