The death penalty. Capital punishment. The words themselves are so powerful, so sublime in their ability to elicit an emotional response. These are not terms meant to make us more comfortable. They are raw, severe, full of connotation.
Debate over the death penalty has raged at least since the fifth century B.C., when Euripides wrote: 'Our ancestors...purged their guilt by banishment, not death. And by so doing, they stopped that endless vicious cycle of murder and revenge.' Societal support for state-sanctioned killing has had quite a few revivals since then, so the debate continues.
In time, our society may evolve past a vengeance mentality and embrace nonviolence, where human worth and dignity is respected in all individuals. While we are not yet to this place, attitudes toward capital punishment have progressed. Most of us now agree the death penalty ought not be applied unless there is a great deal of certainty as to a person's guilt. And most of us reject certain types of capital punishment (being drawn and quartered, for instance) as cruel and unusual.
These represent significant steps toward a more humane society. But the temptation to respond to violence with violence persists. As George Bernard Shaw said, 'And so to the end of history, murder shall breed murder, always in the name of right and honor, and peace, until the Gods are tired of blood and create a race that can understand.'
My own thoughts about bringing back the death penalty in Wisconsin ' as an advisory referendum on the Nov. 7 ballot invites us to do ' is instructed by the perspective I gained from my role in one of the longest trials in Dane County history. For three weeks in January 2001, I was a juror in the trial of Poynette resident Dan Kutz, accused of first-degree murder in the death of his wife, Beth.
The jury was sequestered throughout, meaning we were completely cut off from contact with our families, our jobs, everything that made our lives normal and familiar. It was a life-changing experience, stirring up billows of anxiety, anger and sadness.
I will never forget being in that cramped room with my fellow jurors, deliberating whether to send Dan Kutz to prison for the rest of his life. There was dead silence as 11 hands were raised. The vote in favor of conviction was 11 to one, and I was the one.
Holding out
Eleven sets of tired eyes looked at me. A unanimous verdict was required. If we were unable to reach one, this expensive and agonizing exercise would end in a hung jury and a mistrial. I looked around the room, at these 11 people with whom I had spent almost three straight weeks, sharing meals, stories, and our collective loneliness.
I wondered how long I would be able to hold out ' or how long they would. At one point, I quipped, 'If this lasts much longer, we aren't going to have a hung jury; we're going to have a hung juror.' Luckily, they laughed instead of searching for a rope.
We the jury were unanimous in one respect: our overwhelming desire to go home. It was a desire that, while fully human and understandable, really had no business showing up in the deliberation room. Our job was to deliver justice to the victim, not relief to ourselves.
There are scant words to express the pressure placed on a sequestered juror serving on a murder trial. The lack of support systems, the unending monotony, the loss of freedom: These things are difficult enough. Add the weight of the decision that rested on our shoulders ' involving a victim who should never have died and a defendant who was a brother, son and father ' and the pressure was nearly unbearable.
We had deliberated for one and a half full days to get to the point where 11 jurors were ready to convict Dan Kutz of first-degree murder. The yearning to just raise my hand, resign, surrender and finally go home was powerful. Before long, it got worse.
The jurors, who had been my friends and family for three weeks, turned on me like a hawk on prey. They asked how I could be so blind, how I could be so stupid, why I was incapable of seeing their perspective. They discounted every question, every doubt I raised as if it was the most ridiculous thing they'd ever heard. They wanted to believe they were right. They wanted to go home.
This intense battle of wills went on for four hours. There was no certainty in this case. There were only educated guesses based on circumstantial evidence. This lack of certainty was why I struggled so intensely. Other jurors were able to arrive at a finding of guilt earlier than I.
In the end, following my own careful analysis, I joined my fellow jurors, and our verdict became unanimous.
I wrote a book about this experience, Sequestered. Afterward, as I was promoting my book, I had several jurors from other trials call me in tears, recounting how they voted with the majority because they couldn't stand being the lone holdout. They regretted it at the time, and they've regretted it ever since. This is not the way our justice system is supposed to work. Cases like these are not unanimous verdicts; they are mistrials in disguise.
The death penalty has received a great deal of attention in recent years due to the availability of DNA testing, which has helped overturn a number of convictions of death row inmates. Similarly, problems related to attorneys ' overworked public defenders, ambitious DAs, and the fact that the wealthy have better representation ' have been well-documented. But the role of juries, and the troubling degree of imperfection that they bring to the equation, has been largely overlooked.
Somewhere during my 11-on-one fight, I brought up the term 'reasonable doubt.' The judge had given us a definition: 'Doubt that a reasonable person would have while engaging in the important affairs of life.' In the end, this meant we had to find our own meaning.
I went around the room and asked the other jurors what reasonable doubt meant to them. How sure did they have to be? One said 95%. The next said 80%. One said 70%. Most needed to be in the high 90s. I was shocked to learn that a juror only needed to be 70% certain of guilt in order to send someone to prison for life.
My number was 99.9%. That was how certain I needed to be to convict Dan Kutz of the crime for which he was charged. It took me longer to get there than anyone else, although I eventually did. But to sentence someone to death ' this absolute, final, irrevocable punishment ' my number would have had to be 100%.
The last execution?
On Aug. 21, 1851, John McCaffary became the first ' and last ' person to ever be legally executed by the state of Wisconsin. One observer to his execution, an editor, inventor and legislator named C. Lathom Sholes, eloquently wrote:
'The last agony is over. The crowd [has] been indulged in its insane passion for the sight of a judicially murdered man. McCaffary murdered his wife without the sanction of the law, and McCaffary has been murdered according to law. We do not complain that the law has been enforced. We complain that the law exists. The prisoner we know received from the law all the mercy and lenity that the law and its faithful execution could give....
'We hope this will be the last execution that shall ever disgrace the mercy-expecting citizens of the State of Wisconsin.'
It was. A Senate Democrat and an Assembly Republican led the fight to abolish the death penalty, and on March 9, 1853, the Assembly passed the Death Penalty Repeal Act. The Senate followed on July 8. On July 10, 1853, Gov. Leonard James Farwell signed the act into law, and Wisconsin has been without the death penalty ever since, maintaining this tradition longer than any other state in the nation.
Indeed, the national trend has been movement away from the death penalty. The number of people on death row has fallen slowly in recent years, after rising annually between 1976 and 2000, according to the NAACP Legal Defense Fund. In 2000, Illinois Gov. George Ryan, a Republican, imposed a blanket moratorium on the death penalty in his state, noting that 18 of the 298 people sentenced to death there over the last quarter century were eventually exonerated. (Throughout the U.S., 123 people have been released from death rows.)
'I cannot support a system which...has proven so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life,' said Ryan, who has since been convicted of multiple felonies for misconduct in office. 'Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.'
Meanwhile, Wisconsin is moving ever closer to ending its 153-year-old ban. In May 2006, a longtime death-penalty proponent, state Sen. Alan Lasee (R-De Pere), convinced the Senate to place a referendum to restore the death penalty on the Nov. 7 ballot.
Passage of this referendum would not automatically restore the death penalty in Wisconsin; the Legislature would still have to act, subject to the governor's veto. But it would add impetus to the cause, which is why so many people oppose it.
As Sen. Russ Feingold has said, 'Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system.... The continued use of the death penalty demeans us. The death penalty is at odds with our best traditions. It is wrong and it is immoral. The adage 'two wrongs do not make a right' could not be more appropriate here.'
Only human
There are many reasons to be against the death penalty. It is racist: Studies have shown that the odds of receiving a death sentence are four times higher when the defendant is black. It is classist: Money equals more powerful attorneys and, inevitably, a stronger defense. It is more expensive: two to six times more costly than noncapital cases. It is not a deterrent: States without the death penalty have lower murder rates than those that that have it.
Despite all this, two-thirds of Americans continue to support the death penalty. A recent Badger Poll found that 55.6% of Wisconsinites back the proposed referendum, which calls for capital punishment in cases involving a person who is convicted of first-degree intentional homicide, if the conviction is supported by DNA evidence.
But DNA evidence is not infallible. DNA is a tool, and an effective one at that. But it is still up to jurors ' human beings ' to reach a verdict. DNA adds nothing in the way of creativity, experience, wisdom, history or judgment to the process.
For instance, in the Kutz murder trial, there was some DNA evidence linking the defendant to the crime. But this evidence was completely useless in terms of helping the jury reach its verdict.
The toughest issue we faced was not whether Dan Kutz had killed his wife. Early on in our deliberations, we agreed that he had. The larger and more difficult question was whether he intended to do it, a key element to finding him guilty of first-degree intentional homicide.
Whoever killed Beth Kutz also hid her corpse, which, to this day, has not been found. We could have had all the DNA evidence in the world linking Kutz to the act. But without a body, we had no cause of death. And without a cause of death, there was no way we could have decided, with 100% certainty, that he committed this heinous crime in the first degree.
As jurors, we were left looking at reams of circumstantial evidence and trying to, as the judge put it, 'search for the truth.' The truth, however, was unavailable. Thus we had no choice but to settle for the best truth to which we had access.
The Kutz trial taught me that the administration of justice is never free from human fallibility. The death penalty, in contrast, seeks to affirm exactly the opposite: That it is possible to be so sure we are right that we feel justified in taking another person's life.
As long as human beings remain responsible for the verdict, such certainty cannot exist.
Brian Solomon's book Sequestered (2005, Goblin Fern Press) is available at brian-solomon.com. A portion of the proceeds goes to Dan and Beth Kutz's two children and to benefit Domestic Abuse Intervention Services.
