The execution of justice

November 26, 1999

William McFeely's study of death penalty cases reveals an American still steeped in racism, writes Tim Cornwall.

For two and a half years, US historian William McFeely had been researching a series of death penalty cases in the American South, the subject - with the underpaid, unflagging southern defence lawyers who scrabble to defeat and delay the executions - of his new book, Proximity to Death. At the book's dramatic heart is the story of William Brooks, a black man sentenced to death for the rape and subsequent murder of a young white woman in 1977. While McFeely was exploring the legal history of the case, the two corresponded by phone and letter. Finally, they met: the eminent and elderly southern historian, and a delinquent petty crook-turned-killer who, at 42, had been in prison half his life.

McFeely had never skirted that "one day of horrible acts", in which Brooks abducted and raped 23-year-old Jeannine Galloway, allowed her to dress, then shot her in the neck, perhaps in panic, but leaving her to bleed to death. Finally meeting Brooks at the Jimmy Autry State Prison, southern Georgia, he asked: "Can you tell me what the hell made you do it?" The uncomfortable, partial answer was: "It started out to be a robbery and became two or three other things."

Despite this, the book remains resolutely opposed to the death penalty. "Executioners deal in damaged goods," McFeely writes, "damage often done long ago in the life of the person who kills and is killed."

Brooks's was a case in point. As an overweight, stuttering child, he saw his mother beaten by his father, and was beaten by his stepfather. He said that prison had left him calmer and steadier, allowed him to analyse himself and explore the possibility of change, though he will not even be eligible for parole until 2002, if then. "I love me," he said. "Don't get a chance to love anybody else."

McFeely, a professor emeritus at the University of Georgia and visiting scholar at Harvard, won the Pulitzer prize for his biography of Ulysses S. Grant, the civil war general and postwar president, and high praise for his book on the African-American orator and anti-slavery activist Frederick Douglass. In Proximity to Death he abandons 19th-century history for a personal foray into a corner of contemporary American crime and punishment and, in particular, the crowded offices of the Southern Centre for Human Rights.

It began with a phone call from Stephen Bright, the centre's top lawyer. An eloquent and experienced litigator, he worked for a tiny salary, with the help of young assistants fresh out of Harvard and Yale, to save the lives of death row clients. He wanted McFeely to testify in a murder appeal that a black man cannot expect equal protection under the law in a courtroom displaying the Georgia flag, which incorporates the potent symbol of the Confederate battle flag, the Stars and Bars.

Somewhat reluctantly McFeely agreed, and travelled to the courthouse in McDonough, central Georgia. "I wandered into the courtroom," he says, "and tried to figure things out. There was a very good-looking black guy, good suit, nice tie, perusing a great stack of documents at the lawyers' table." Round one for the new South, he thought, a black lawyer working death penalty cases. It turned out things were not so new. The man was Carzel Moore, convicted and sentenced to death for the 1976 abduction, murder and rape of a white woman. Beneath the suit he wore an electrical stun belt, with which he could be incapacitated if necessary.

The Centre for Human Rights had won a new sentencing trial for Moore, a chance to persuade a new panel of jurors to opt for a life term rather than death, after finding errors in the penalty phase of his first trial. McFeely duly described how the Confederate flag flew in battle and later at Ku-Klux-Klan rallies and lynchings. He was followed to the stand by a Klan member, who publicly celebrated the execution of Roosevelt Green, Moore's partner in the killing. With these witnesses, Bright and his fellow attorneys tried to draw a line through lynch-mob justice to modern-day electrocutions.

"As a historian," McFeely says, "you can't help but respond when being confronted with the echoes of the past that come up to the present." He had cut his teeth in graduate school in the 1960s, studying the Reconstruction period after the American civil war, when blacks were granted, then deprived of, basic human rights. The struggles of the modern civil rights era were also under way, and "that was what all of us cared about at the time".

The arguments in court that day did not wash with the judge, but they persuaded McFeely. Driving home from the hearing, he says: "I thought, I've got to write a book on this thing." Proximity to Death was the result.

"I know something of the nation's history - of the history of its violences," he writes, "but one day in a Georgia courtroom carried me beyond a recording of the past toward a small responsibility for the present."

Last week, Hollywood stars, politicians and intellectuals signed an advertisement in The New York Times calling for a moratorium on the death penalty. But for a long time there has been no death penalty "debate" in America, outside Massachusetts and a few other smaller states that still bar its use. Executions - nearly 40 a year in Texas alone - are no longer news. The American public polls at 75 per cent in favour. True, there are said to be about 10,000 people who carry wallet cards stating that if they are homicide victims, they would ask the state not to "kill in my name". But death penalty opponents lost their champion after New York governor Mario Cuomo was voted out of office. And any hope that the growing pace of executions would shock or disgust people - with 3,500 inmates on death row, about 300 sent there each year and the appeals process being progressively tightened - has not been realised.

Southern defence lawyers such as Bright are in a tiny minority. The death penalty was reintroduced in 1976 and the last decisive legal battles over executions were fought in the Supreme Court in the early 1990s. Bright and his fellow attorneys file appeal after appeal, exploit every conceivable technicality, not to win victories so much as to buy time.

And while Americans support the death penalty by such large margins, as jurors they are told that they are not responsible for the executions, nor is the judge, nor the police; the person responsible is the defendant, "the moment he pulled the trigger".

For McFeely, the book was a learning process. "I realise now that I have been opposed to the death penalty always, but I've never confronted it."

By the end of it, he had "seen some of the workers on the long line assembling the intricate parts of the killing machine that drives so relentlessly across our land".

A distinguished black professor at Harvard once asked him whether he would still be opposed to the death penalty if it was possible to eliminate race entirely. He said yes. But he is also aware of how key the issue of race is.

"The criminal justice system eluded the civil rights movement to a remarkable degree," he says. "Prosecutors are overwhelmingly white; the black community does not trust the police forces."

McFeely says that as a historian of America's South, "you are a historian of racial matters". While the American courts are now at pains to prove themselves colour-blind, they still discriminate heavily against "the poor and the screwed up". There is a tremendous confusion over race and class but, aside from lingering racism, in the South "an overwhelmingly large number of people who are poor are black ... if you are rich, you are not going to be executed". In researching the book, he heard echoes of the past in the present even more directly. The white judge who initially sentenced William Brooks to death was the son of a man charged (but not convicted) in the lynching of a black teen, dragged from the courthouse after being cleared of murdering a white teen in 1912.

And McFeely's research opens doors on issues other than race. Of the four death row inmates in his book, three - including both black men - carried out their crimes with a gun. As long ago as 1932, professor H. C. Brearly concluded in Homicide in the United States that the most obvious single explanation for the high US murder rate was the legal availability of guns. He also noted that African-American men and women were especially vulnerable to gun death.

While there are groups against guns and activists against the death penalty, they do not mix much. But if six out of ten homicides in America involve use of a firearm, the figure, presumably, is about the same for the 300 sentenced to death annually.

How far have firearms fed not just the crime rate but the US prison population? And how far are the victims of gun crimes, not just the shot-at but the shooters, encouraged to serious crime by the easy availability of a weapon?

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