Why Victims Need To Be Full Participants In Public Policy Discussions About
Prison Sentencing
Illinois, like other states, holds frequent
legislative and public policy discussions about what are appropriate prison
sentences for convicted criminals. With America's prison population nearing 2.2
million, the highest percentage of an imprisoned population of any nation in
history, with lots more in the "system" with probations and paroles, and the
aging and growing population leading to rising costs, this public policy
discussion is not only inevitable, it is invaluable.
Why there are so many people committing violent crime is
another very important discussion - a very important one - about social
problems, the causes of crime, and how to best
prevent it. But that is for another day and another website perhaps. (But here
is a hint - with 30,000 deaths from guns in this nation when no other nation in
the world has numbers even close to that, the profits of the gun industry over
sound reasonable crime prevention policy is a good place to begin the
discussion. Gun violence accounts for 80% approximately of all violent death and
injury in crime. Yet the gun lobby will not cooperate with even the most basic
and reasonable of reforms such as universal background checks.)
We have seen just in the Chicago area alone with the big push
in the 1990's to capture and imprison the worst gang leaders and drug dealers,
many of whom were sentenced to LWOP for their series of massively violent acts,
that the crime rate dropped markedly. Imprisonment also works.
And we all know the system is far from perfect and is in need
of serious reform.
But meanwhile, victims of these crimes are the reason that
criminals have to serve time in prison in the first place. The fact that there
are victims, created by criminals, is the reason we are having any issue with
prison sentences at all.
There cannot be a discussion about what prison sentences
should or should not be that can happen legally or morally without the empowered
voices of victims in that discussion. Victims aren't the whole discussion, but
they are a vital and indispensable part of it.
There are people in Illinois right now that are working on
sentencing reforms that are actually saying, unbelievably, that victims should
not have a key voice in this process. It was in fact those people who led us to
create IllinoisVictims.org.
We have heard a few of these people actually say that once
the crime is in the past, the only thing that matters is the behavior of the
convict in the prison. It is now only up to the prisoner professionals. How the
time is served is all that matters, not the original crime. The remorse, the
good behavior. The victims are no longer the issue - their hurts were in the
past. How the release of the offender would affect them is irrelevant. How the
release of the offender would cause society to view the original crime is
irrelevant. The convict has a life in the present that is now different. That is
all that matters, they say.
We at IllinoisVictims.org are trying to educate those
sentencing reformers about what the proper role of victims is in this public
policy debate. We know that the Illinois Constitution guarantees us fair
treatment and full information, knowledge of and participation in anything that
affects our cases. So there is little question that victims have a right to be
informed about and a voice in any possible changes in what they were told would
be the prison sentences of the offenders in their cases, if such changes were to
be decided on.
We know also, just as a matter of political strategy for
those who want to change public policy, that if victims are not brought in from
the start as valued voices in this discussion, they will, for the most part,
arise as vocal opponents later. And they will be listened to, because they are
the reason for punishment for crime in the first place. They will always carry
public sympathy. That will never change, no matter the "political climate".
One of the issues in the sentencing debate that we are
currently most concerned about is protecting the sentence of Life Without Parole
and all determinate sentences. Illinois has not had parole since 1978, and only
those earlier cases remain eligible for it. The benefit to victims of not having
to go through the constant uncertainty, re-traumatization, and engagement with
the offender over the years and in regular intervals is significant.
For those who want to bring back parole as a way of effecting
sentencing reform, a horrifically expensive and huge bureaucracy, that if you
look at other states is not working anyway, we say this:
You cannot reform the sentencing and prison system on the
backs of the victims. The better way to reduce the load in prison is to expand the earned time off for good
behavior that is automatically calculated under the current determinate
sentencing system. It does not require victims to be constantly re-injured. And
it saves the state millions and millions of dollars. It puts all the
responsibility on the offender to earn the time off. And the only sentence this
does not apply to is Life. Determinate sentences with formulas for good time
earned off is a good system.
And when reforming the prison system, remember 2/3 of the
offenders there are serving for non-violent and drug related offenses. We
strongly suggest that those sentences make the most sense as a starting place
for reform.
The vast majority of Illinois convicts get out of prison some
day. They serve their time, they even earn up to half the sentence off through
their own efforts. We always have to construct prisons understanding this - and
build a system that helps them return to us as whole people capable of
re-entering in productive and positive ways.
So the main conversation among the prison reformers mentioned above is this: should we have a natural life sentence or not? Some,
such as the John Howard Society and the International Socialists Organization
(ISO) say no - that no one should ever not be able to earn release at some
point.
We disagree. We think LWOP, Life without parole, is sadly
sometimes appropriate, only rarely, for those "worst of the worst". It should be
applied only most carefully, but sometimes there are people who have lost the
right to walk among us. Some articles below support the benefits and the
widespread agreement about the LWOP sentence.
We also know that many Americans believe in the use of the
Death Penalty for those "worst of the worst". Many victims seek it as the fair
and appropriate consequence for what they took.
We also know polling shows that half of America prefers LWOP to the Death
Penalty, and that many victims actually oppose the death penalty for two major
reasons - 1. The prolonged appeals process that provides tons of focus on the
offender and nothing on the needs of victims, and 2. that killing the offender
actually is no different than the horror done to their family members. We note
that New Jersey became the first state in modern US History to legislatively
abolish the death penalty by replacing it with Life Without Parole.
In prison for life, inmates should be given a chance to earn
some privileges, work to help others, and help to make up for what they took.
Even have access to Restorative Justice programs, if they and the victims are
willing and able.
But almost everyone believes that LWOP is
appropriate in at least some circumstances for the worst offenders. While there remains
considerable consensus that life sentences must be used for the unrepentantly
dangerous, that our safety is a fundamentally important thing to protect, and
while victims deserve not to have to spend the rest of their lives constantly
having to re-engage with the person who so brutally destroyed their lives, we
will work to defend the Life sentence.
The Benefits of the Life Without Parole Sentence
Recent documentation regarding the reduction in people receiving death sentence
as being a direct result of strong Life Without Parole sentencing options:
http://www.latimes.com/news/nationworld/nation/la-na-death11dec11,0,602773.story?coll=la-headlines-nation
Monday, December 11, 2006
Texas is sending fewer to death row
By Lianne Hart
Times Staff Writer
HOUSTON — Texas may lead the nation by far in the number of executions
carried out each year, but figures released last week suggest that support
here for the ultimate punishment may be on the wane.
Over the last 10 years, the number of death sentences imposed in the state
has dropped 65%, from 40 in fiscal 1996 to 14 in 2006, according to
statistics compiled by the Texas Office of Court Administration. In that
time, murders have remained about the same: State crime statistics show
1,476 murders in 1996 and 1,405 in 2005.
The figures are in line with a national decline in death sentences, and show
that "Texas is catching up with the trend," said Richard Dieter, executive
director of the Death Penalty Information Center.
A growing number of wrongly convicted inmates across the country and the use
of DNA evidence to exonerate the innocent have made jurors increasingly
reluctant to impose the death penalty, Dieter said.
Because of the large percentage of death sentences that come out of
Houston's Harris County, the drop in Texas could be traced in part to a
scandal at the Houston Police Department crime lab in which botched test
results were used to bring suspects to trial.
In addition, a law was passed last year that gave Texas juries the
sentencing option of life without parole in death penalty cases, he added.
"There has always been the idea of Texas being tough on crime, but I think
as people see how much potential there is for mistakes, they're less
inclined to be so heavy handed," said Vicki McCuistion, program director of
the Texas Coalition to Abolish the Death Penalty.
But Lyn McClellan, head of the felony trial section at the Harris County
district attorney's office, said observers shouldn't read too much into the
figures.
In Houston, the number of crimes committed that are eligible for the death
penalty has declined — not prosecutors' commitment to get a death sentence
when the case calls for it, McClellan said.
"We are trying fewer cases, and the only way I can attribute that is fewer
cases meet our criteria for what we think is a death-appropriate case. It's
not like we're getting those cases and saying, 'We don't want to seek
death,' " McClellan said.
Harris County sends more defendants to death row than any county in the
state. In fiscal 1996, Harris County jurors gave the death sentence to 16
defendants. But in fiscal 2006, three people were sent to death row from the
county.
The drop was enough to bring down the state average, said Angela Garcia,
judicial information manager for the Office of Court Administration.
Dianne Clements, president of the Houston-based pro-death
penalty victims rights group Justice For All, said the decline had more to do with U.S. Supreme Court decisions
limiting the kinds of cases eligible for the death penalty than a major
shift in thinking.
"We have the death penalty on the books and it's obvious that Texas uses
it," she said. "I don't see it as anything to be ashamed of."
- - - - -
lianne.hart@latimes.com
MISCELLANEOUS NEWS STORIES ON SENTENCING ISSUES
http://releases.usnewswire.com/GetRelease.asp?id=77365
DOJ: The Number of Death Row Inmates Declined for Fifth Straight Year During
2005
12/10/2006 3:30:00 PM
To: National Desk
Contact: Stu Smith of U.S. Department of Justice, 202-307-0784, or
301-983-9354 (after hours); Web:
http://www.ojp.usdoj.gov/bjs
WASHINGTON, Dec. 10 /U.S. Newswire/ -- The Federal Bureau of Prisons and 36
states held 3,254 inmates on death row at the end of last year, which was 66
fewer such inmates than at the end of 2004, the Justice Department's Bureau
of Justice Statistics (BJS) announced today. The 2005 drop was the fifth
consecutive year the number of prisoners with a death sentence had fallen.
There were 3,601 death row prisoners on Dec. 31, 2000.
During 2005, 128 inmates were put on death row, which was the lowest number
of admissions since 1973 when 44 persons were admitted. This was the third
consecutive year such admissions had declined.
Sixteen states executed 60 prisoners last year, which was one more execution
than in 2004. It was 38 fewer than in 1999, the peak year for executions
since the U.S. Supreme Court reinstated the death penalty in 1976. Those
executed during 2005 had been under a sentence of death for an average of 12
years and three months, or 15 months longer than for inmates executed in
2004.
Texas carried out 19 executions last year. Indiana, Missouri and North
Carolina each executed five inmates. Ohio, Alabama and Oklahoma executed
four each. Georgia and South Carolina executed three each. California
executed two. Connecticut, Arkansas, Delaware, Florida, Maryland and
Mississippi each executed one. Fifty-nine men and one woman were executed
during 2005. The execution in Connecticut was the first in that state since
1960.
Four States (California, Texas, Florida and Pennsylvania) held half of all
death row inmates as of Dec. 31, 2005. The Federal Bureau of Prisons held 37
death row inmates.
Among the inmates sentenced to death for whom information was available, 65
percent had a prior felony conviction, including 8 percent with at least one
previous homicide conviction. Nearly four in 10 inmates under a death
sentence committed the capital crime while on probation, parole or in some
other criminal justice status.
Fifty-six percent of death row inmates were white and 42 percent were black.
The 362 Hispanic inmates under sentence of death accounted for 13 percent of
inmates with a known ethnicity. Ninety-eight percent of all inmates were
male and 2 percent were female.
The average age of death row inmates on Dec. 31, 2005, was 42 years old. The
oldest death row inmate was 90; the youngest was 20. Among inmates for whom
the date of arrest was available, 11 percent (342 of the 2,985 inmates) were
19 or younger at the time of their arrest.
Of the 7,320 people under a death sentence between 1977 and 2005, 14 percent
had been executed, 4 percent died from causes other than execution and 37
percent received other dispositions. A slightly higher percentage of whites
(16 percent) than blacks and Hispanics (11 percent) have been executed.
During the first 11 months of 2006, fewer executions have been carried out
compared with the same period in 2005. As of Nov. 30, 2006, 14 states had
executed 52 inmates. This is three fewer than the number executed as of the
same date in 2005.
Lethal injection accounted for all 60 executions during 2005 and 51 of the
52 executions in the first 11 months of 2006. Thirty-seven states authorized
the use of lethal injection as of Dec. 31, 2005, up from 32 in 1995. Between
1977 and 2005, 836 of the 1,004 executions (83 percent) were by lethal
injection.
The report, "Capital Punishment, 2005 (NCJ-215083)" was written by BJS
statistician Tracy L. Snell. Following publication, the report can be found
at
http://www.ojp.usdoj.gov/bjs/abstract/cp05.htm.
- - - - -
For additional information about the Bureau of Justice Statistics
statistical reports programs, please visit the BJS Web site at
http://www.ojp.usdoj.gov/bjs.
The Office of Justice Programs (OJP) provides federal leadership in
developing the nation's capacity to prevent and control crime, administer
justice and assist victims. OJP is headed by an assistant attorney general
and comprises five component bureaus and an office: the Bureau of Justice
Assistance; the Bureau of Justice Statistics; the National Institute of
Justice; the Office of Juvenile Justice and Delinquency Prevention; and the
Office for Victims of Crime, as well as the Community Capacity Development
Office, which incorporates the Weed and Seed strategy and OJP's American
Indian and Alaska Native Affairs Desk. More information can be found at
http://www.ojp.usdoj.gov/.
/ / / / /
http://www.usatoday.com/news/nation/2006-12-10-death-row_x.htm
Study: Fewer inmates on death row in '05
WASHINGTON (AP) — Fewer prison inmates were moved to death row in 2005,
according to a federal study that shows one more person was executed than in
the year before.
Four states — California, Texas, Florida and Pennsylvania — held half of the
3,254 inmates awaiting execution at the end of 2005, the study by the Bureau
of Justice Statistics showed. There were 37 death row inmates in federal
prisons at that time.
Sixteen states executed 60 prisoners last year, one more inmate than in 2004
Overall, however, the number of inmates on death row on Dec. 31, 2005, or
the number of inmates moved there during the year dipped.
Among the findings by the Justice Department agency:
•128 inmates were moved to death row in 2005, the third consecutive year
with a decline in year-long totals. It was the lowest number of prisoners
put on death row since 1973.
•Sixty-six fewer inmates were on death row at the end of 2005 than in 2004.
That was a decrease for the fifth straight year and about a 10% drop since
Dec. 31, 2000, when there were 3,601 death row prisoners nationwide.
The Justice Department data, the most recent available, confirmed similar
trends over the past five years as identified by Amnesty International USA,
which opposes the death penalty.
Sue Gunawardena-Vaughn, director of the group's Program to Abolish the Death
Penalty, said the drop in part reflects the public's squeamishness in
approving executions for people who ultimately may be found innocent.
Since 1973, when watchdog groups began keeping track, 123 death row inmates
have been cleared of crimes that had earned them death sentences.
Juries "don't want to be culpable for possibly putting an innocent person to
death," Gunawardena-Vaughn said.
Moreover, because of lengthy trials and inevitable years of appeals in
capital murder cases, the death penalty is expensive and "dilutes very, very
crucial resources — many of which could be put toward more policing or
mental health programs," she said.
As of the beginning of this month, 52 inmates have been executed so far in
2006, according to data provided by the Washington-based Death Penalty
Information Center.
Thirty-eight states and the federal government allow juries to consider the
death penalty in the most heinous criminal cases. All states except Nebraska
allow lethal injection in executions. Inmates in Nebraska and eight other
states can be electrocuted. Additionally, three states allow death by
hanging, another three by firing squad and four by lethal gas.
At the end of last year, 56% of death row inmates were white and 42% were
black, the Justice Department study reported. Women accounted for 2% of
those people facing execution.
- - - - -
Copyright 2006 The Associated Press.
Aggie and her Killer
Ronnie Dugger | February 08, 2008 |
Commentary: The Texas Observer
Texas, with one-thirteenth of the country’s people, has killed 37
percent of the convicted murderers “executed” in the United States
since 1976. As Adam Liptak’s December 26 report in The New York Times
made clear, this is not because Texans on juries bring in more death
sentences than their fellow Americans—they do not—but because the
state’s district attorneys, judges, and other politicians are more
aggressive in favor of killing convicted killers. The recent use of DNA
testing has cleared people we were getting ready to kill, giving anyone
with a conscience pause as we realize that the states have probably
been killing, quite irreversibly, some innocent people. The likelihood
that lethal injection as practiced sometimes causes the dying prisoner
agony and suppresses visible signs of it has resulted in a de facto
national moratorium on “capital punishment” until the Supreme Court
rules on that issue next June. In polls, Texans support the state’s
killing convicted killers, but when the option of life imprisonment
with no chance of parole is included in the questioning, opinion
hitches back clearly against state killing. In 2005, Texas legalized
the mandatory-life-sentence option. Yet last year Texas killed 62
percent, almost two-thirds, of the entire country’s “executed”
prisoners, 26 of 42. As Observer readers well know, there is something
wrong here.
Texas Solicitor General R. Ted Cruz, who leads the state’s legal
brigades in executing convicted killers in Texas, told Jonathan
Gurwitz, an editorial board member at the San Antonio Express-News, for
a Jan. 19 Wall Street Journal op-ed, that “frequently, when those ...
who are opposed to the death penalty are presenting their arguments,
one of the aspects that is strikingly missing is any consideration of
the nature and barbarity of the crimes these people commit and any
genuine consideration of the impact these crimes have on the victims’
families.”
My father’s parents died when he was very young, and he and his
brothers and sisters were distributed among relatives and close
friends. He was adopted and raised by Florence and Herman Zeuhl of the
farming town of Zeuhl near Seguin, south of San Antonio. That makes me
family, but not blood kin, with their daughter, Aggie Zeuhl Herden, one
of the toughest, lovingest, and most whimsical of women, and her
husband Herman, who drove my dad to work early every morning in San
Antonio. When I was six or seven, visiting out at my “Aunt Florence’s”
farm, the Herdens’ two little girls, Aggie Beth and Mary Jane,
conspired one delirious and terrifying midday to give me my first kiss,
and prevailed. Spending some summers out there, I learned what I know
about farming life. Early mornings I collected the chickens’ eggs from
their nests. I watched the milking. Aunt Florence told me I could grind
all the popping corn I wanted for the school year. Later, my mother and
Aggie used to visit a bar or two together, simulating the freedoms of
men, but not women, in those days. They would walk down to the
newspaper where Aggie’s husband worked and visit him, then duck in for
a few beers, and walk home. Sometimes, when my mother was fed up with
my father, she and Aggie would tie one on. For my mother, born in
Glasgow, and with no relative of her own anywhere near, Aggie was her
nearest kin, her pal there in little whiles of freedom from housework
and selling women’s clothes for wages downtown. The thing about Aggie
was her smile, kind of crooked-like, a worldly smile that turned on for
a lot of things that weren’t supposed to be funny. She knew the world.
And she loved. When her Herman died, I showed up at her house in San
Antonio at 801 Aransas Avenue with a bottle of Jack Daniel’s for her,
and we hugged and hugged and hugged. She was a devout Catholic like my
father, and in her late 70s she was living alone and taking care of the
cooking and housekeeping for a group of priests at the St. Margaret
Mary Catholic Church. Her sons, worried about her alone in her South
San neighborhood, got her a black pistol. She bought an alarm system
for the house, but the company only wired one of the many windows. She
had a hearing aid, but when she went to sleep she turned it off.
At 3 or 4 o’clock the early morning of July 4, 1990, when Aggie was 79,
a troubled young man who had been drinking, 23-year-old Steve
Rodriguez, pried the screen from an open back window and climbed in. He
threw a TV and a fan out that same window, encountered Aggie, who was
up, and stabbed her with a Buck hunting knife six times, once in her
face, three times in her neck, and twice in her chest. She fell back
partly on and partly off her bed. He pocketed her black pistol and some
jewelry, threw another TV and a stereo out the window, and left. The
police had been alerted at 4:15 a.m. by a silent alarm in her house
and, going to a nearby house where one of them said he knew burglars
lived, arrested Rodriguez with items he was alleged to have stolen. At
5:10 a.m., one of Aggie’s sons, also named Herman, charged into the
house and found his mother. A cop who was there heard him scream and
saw him go out front and bang his head on the sidewalk. The cop did not
say how many times. Aggie was pronounced dead at 5:40 a.m. Rodriguez,
his first denials undercut by witnesses, confessed to three detectives
about 9 a.m. He said Aggie had come at him. He apologized for killing
her. Six priests came to her funeral. At the trial in 1992, Rodriguez
pled guilty. His lawyers argued that he was mentally retarded and
damaged by inhalants. The jury gave him death.
In 1990 there were 129,345 violent crimes in Texas. Gov. Ann Richards
was informed by the Texas Department of Criminal Justice on May 8,
1992, that Rodriguez was “under the sentence of death for the offense
of capital murder.” In 1995 Gov. George W. Bush was informed that “the
date of execution is set for ‘some hour before sunrise on Wednesday,
November 8, 1995.’” After the usual state and federal appeals, the
sentence was upheld. In 2002, though, the Supreme Court prohibited the
execution of the mentally retarded, and a Texas judge granted Rodriguez
a new punishment trial over that and a related question.
All this time, Rodriguez was in prison and his family waited, knowing
every day that the state had decided to kill Rodriguez. Aggie’s large
family, keeping up with the legal blow-by-blow, inescapably were being
reminded again and again and again of the terrible way that beloved
Aggie had been murdered. There were photographs of Aggie sprawled
bloody in her bedroom. Some in the Herden family looked at these; some
never could. There are some things about how some of them felt from
time to time about Rodriguez that I am not telling you. Aggie’s son
Matthew had spent his working life as a cop in San Antonio. He made
detective and became the secretary-treasurer of the state police
association. He and his wife Martha live in a spotless old Hill Country
house in Blanco an Olympic discus throw across a wide meadow from St.
Ferdinand’s Catholic Church, which stands alongside the beautiful
Blanco River. At the church barbecue one Sunday when I came by, Matt
was dishing out barbecue chicken. He puts out the church bulletin and
is an elected member of the Blanco school board. Martha attends to
vessels and linens for St. Anne’s Altar Society on the second and fifth
Saturdays. Many an hour on many a day, Matthew and Martha conferred
with their pastor, Father Nick Ejimabo, who is from Africa, about
Aggie—their grief and anger, where God was, Rodriguez, his sentence,
and what is right. Such questions haunted all the other Herdens whose
names I could call. Here was a family that had suffered no closure on
Aggie’s death for almost 18 years when lawyers for Rodriguez proposed
to Bexar County prosecutors that his new punishment trial be settled by
life without parole.
The prosecutors asked the Herden family what they wanted. Did they want
Texas to insist and contend with every available argument that
Rodriguez should be killed? Or did they agree to accept Rodriguez and
his family’s proposal to spare Rodriguez, now 41, if he would be locked
up for sure for the rest of his life? Conceivably, at the retrial he
could win a pardon. The Herden family met. They accepted his being
locked up until he dies.
“Killer Gets Life with No Parole,” said the headline this January 15 in
the San Antonio Express-News. The legal problem, indeed, the
constitutional problem, had been how to achieve that result although
the law authorizing that alternative had been passed 15 years after the
crime. Rodriguez waived his constitutional protection against double
jeopardy and pled guilty to three offenses: burglary, assault of an
elderly person, and aggravated robbery, which combined equaled a
capital crime, and he was sentenced to life for each offense, with the
three sentences to run one after another. He also waived any right to
appeal, any clemency, or any parole. If he asked for any of these, the
Express-News reported, “the state could renew pursuit of a death
sentence.”
“We structured it so that he would never, never get out of prison and
he would never harm anyone else,” prosecutor Melissa Skinner told the
newspaper.
In the courtroom, as the outcome was settled, my cousin Matthew Herden
said to Steve Rodriguez, who did not look back at Matthew, “She was a
nice, sweet person. Every time the Fourth of July comes up at 4 o’clock
in the morning, I have to think about you putting a knife in my mother.”
Matthew added, “I don’t want to hear anything out of you, if you don’t
mind.”
Sharing the suffering of my kinspeople all these years—the Herden
family was in some deep way killed by Steve Rodriguez—I came to
understand why a man might want to kill the man who killed his mother.
But the Herdens left it to the system and God, and at last, forced to
decide, they spared themselves, and were spared, the awful burden of
personally participating in killing Steve Rodriguez. To the young
people watching all this closely and to the rest of us, the Herdens and
the Bexar County prosecutors showed that Texas can forbear killing
killers and still protect those of us free in society. Thus we do see
real ethical progress in our own place and lifetime. And there is a
closure. Martha Herden says it’s as if the family can finally hear
Aggie say again, “Let’s go have a couple of drinks.” I am very proud of
them, and I know that Aggie is, too.
Ronnie Dugger is the founding editor of The Texas Observer. He can be
reached at
RDugger123@aol.comAggie
and her Killer
Ronnie Dugger | February 08, 2008 |
Commentary: The Texas Observer
Texas, with one-thirteenth of the country’s people, has killed 37
percent of the convicted murderers “executed” in the United States
since 1976. As Adam Liptak’s December 26 report in The New York Times
made clear, this is not because Texans on juries bring in more death
sentences than their fellow Americans—they do not—but because the
state’s district attorneys, judges, and other politicians are more
aggressive in favor of killing convicted killers. The recent use of DNA
testing has cleared people we were getting ready to kill, giving anyone
with a conscience pause as we realize that the states have probably
been killing, quite irreversibly, some innocent people. The likelihood
that lethal injection as practiced sometimes causes the dying prisoner
agony and suppresses visible signs of it has resulted in a de facto
national moratorium on “capital punishment” until the Supreme Court
rules on that issue next June. In polls, Texans support the state’s
killing convicted killers, but when the option of life imprisonment
with no chance of parole is included in the questioning, opinion
hitches back clearly against state killing. In 2005, Texas legalized
the mandatory-life-sentence option. Yet last year Texas killed 62
percent, almost two-thirds, of the entire country’s “executed”
prisoners, 26 of 42. As Observer readers well know, there is something
wrong here.
Texas Solicitor General R. Ted Cruz, who leads the state’s legal
brigades in executing convicted killers in Texas, told Jonathan
Gurwitz, an editorial board member at the San Antonio Express-News, for
a Jan. 19 Wall Street Journal op-ed, that “frequently, when those ...
who are opposed to the death penalty are presenting their arguments,
one of the aspects that is strikingly missing is any consideration of
the nature and barbarity of the crimes these people commit and any
genuine consideration of the impact these crimes have on the victims’
families.”
My father’s parents died when he was very young, and he and his
brothers and sisters were distributed among relatives and close
friends. He was adopted and raised by Florence and Herman Zeuhl of the
farming town of Zeuhl near Seguin, south of San Antonio. That makes me
family, but not blood kin, with their daughter, Aggie Zeuhl Herden, one
of the toughest, lovingest, and most whimsical of women, and her
husband Herman, who drove my dad to work early every morning in San
Antonio. When I was six or seven, visiting out at my “Aunt Florence’s”
farm, the Herdens’ two little girls, Aggie Beth and Mary Jane,
conspired one delirious and terrifying midday to give me my first kiss,
and prevailed. Spending some summers out there, I learned what I know
about farming life. Early mornings I collected the chickens’ eggs from
their nests. I watched the milking. Aunt Florence told me I could grind
all the popping corn I wanted for the school year. Later, my mother and
Aggie used to visit a bar or two together, simulating the freedoms of
men, but not women, in those days. They would walk down to the
newspaper where Aggie’s husband worked and visit him, then duck in for
a few beers, and walk home. Sometimes, when my mother was fed up with
my father, she and Aggie would tie one on. For my mother, born in
Glasgow, and with no relative of her own anywhere near, Aggie was her
nearest kin, her pal there in little whiles of freedom from housework
and selling women’s clothes for wages downtown. The thing about Aggie
was her smile, kind of crooked-like, a worldly smile that turned on for
a lot of things that weren’t supposed to be funny. She knew the world.
And she loved. When her Herman died, I showed up at her house in San
Antonio at 801 Aransas Avenue with a bottle of Jack Daniel’s for her,
and we hugged and hugged and hugged. She was a devout Catholic like my
father, and in her late 70s she was living alone and taking care of the
cooking and housekeeping for a group of priests at the St. Margaret
Mary Catholic Church. Her sons, worried about her alone in her South
San neighborhood, got her a black pistol. She bought an alarm system
for the house, but the company only wired one of the many windows. She
had a hearing aid, but when she went to sleep she turned it off.
At 3 or 4 o’clock the early morning of July 4, 1990, when Aggie was 79,
a troubled young man who had been drinking, 23-year-old Steve
Rodriguez, pried the screen from an open back window and climbed in. He
threw a TV and a fan out that same window, encountered Aggie, who was
up, and stabbed her with a Buck hunting knife six times, once in her
face, three times in her neck, and twice in her chest. She fell back
partly on and partly off her bed. He pocketed her black pistol and some
jewelry, threw another TV and a stereo out the window, and left. The
police had been alerted at 4:15 a.m. by a silent alarm in her house
and, going to a nearby house where one of them said he knew burglars
lived, arrested Rodriguez with items he was alleged to have stolen. At
5:10 a.m., one of Aggie’s sons, also named Herman, charged into the
house and found his mother. A cop who was there heard him scream and
saw him go out front and bang his head on the sidewalk. The cop did not
say how many times. Aggie was pronounced dead at 5:40 a.m. Rodriguez,
his first denials undercut by witnesses, confessed to three detectives
about 9 a.m. He said Aggie had come at him. He apologized for killing
her. Six priests came to her funeral. At the trial in 1992, Rodriguez
pled guilty. His lawyers argued that he was mentally retarded and
damaged by inhalants. The jury gave him death.
In 1990 there were 129,345 violent crimes in Texas. Gov. Ann Richards
was informed by the Texas Department of Criminal Justice on May 8,
1992, that Rodriguez was “under the sentence of death for the offense
of capital murder.” In 1995 Gov. George W. Bush was informed that “the
date of execution is set for ‘some hour before sunrise on Wednesday,
November 8, 1995.’” After the usual state and federal appeals, the
sentence was upheld. In 2002, though, the Supreme Court prohibited the
execution of the mentally retarded, and a Texas judge granted Rodriguez
a new punishment trial over that and a related question.
All this time, Rodriguez was in prison and his family waited, knowing
every day that the state had decided to kill Rodriguez. Aggie’s large
family, keeping up with the legal blow-by-blow, inescapably were being
reminded again and again and again of the terrible way that beloved
Aggie had been murdered. There were photographs of Aggie sprawled
bloody in her bedroom. Some in the Herden family looked at these; some
never could. There are some things about how some of them felt from
time to time about Rodriguez that I am not telling you. Aggie’s son
Matthew had spent his working life as a cop in San Antonio. He made
detective and became the secretary-treasurer of the state police
association. He and his wife Martha live in a spotless old Hill Country
house in Blanco an Olympic discus throw across a wide meadow from St.
Ferdinand’s Catholic Church, which stands alongside the beautiful
Blanco River. At the church barbecue one Sunday when I came by, Matt
was dishing out barbecue chicken. He puts out the church bulletin and
is an elected member of the Blanco school board. Martha attends to
vessels and linens for St. Anne’s Altar Society on the second and fifth
Saturdays. Many an hour on many a day, Matthew and Martha conferred
with their pastor, Father Nick Ejimabo, who is from Africa, about
Aggie—their grief and anger, where God was, Rodriguez, his sentence,
and what is right. Such questions haunted all the other Herdens whose
names I could call. Here was a family that had suffered no closure on
Aggie’s death for almost 18 years when lawyers for Rodriguez proposed
to Bexar County prosecutors that his new punishment trial be settled by
life without parole.
The prosecutors asked the Herden family what they wanted. Did they want
Texas to insist and contend with every available argument that
Rodriguez should be killed? Or did they agree to accept Rodriguez and
his family’s proposal to spare Rodriguez, now 41, if he would be locked
up for sure for the rest of his life? Conceivably, at the retrial he
could win a pardon. The Herden family met. They accepted his being
locked up until he dies.
“Killer Gets Life with No Parole,” said the headline this January 15 in
the San Antonio Express-News. The legal problem, indeed, the
constitutional problem, had been how to achieve that result although
the law authorizing that alternative had been passed 15 years after the
crime. Rodriguez waived his constitutional protection against double
jeopardy and pled guilty to three offenses: burglary, assault of an
elderly person, and aggravated robbery, which combined equaled a
capital crime, and he was sentenced to life for each offense, with the
three sentences to run one after another. He also waived any right to
appeal, any clemency, or any parole. If he asked for any of these, the
Express-News reported, “the state could renew pursuit of a death
sentence.”
“We structured it so that he would never, never get out of prison and
he would never harm anyone else,” prosecutor Melissa Skinner told the
newspaper.
In the courtroom, as the outcome was settled, my cousin Matthew Herden
said to Steve Rodriguez, who did not look back at Matthew, “She was a
nice, sweet person. Every time the Fourth of July comes up at 4 o’clock
in the morning, I have to think about you putting a knife in my mother.”
Matthew added, “I don’t want to hear anything out of you, if you don’t
mind.”
Sharing the suffering of my kinspeople all these years—the Herden
family was in some deep way killed by Steve Rodriguez—I came to
understand why a man might want to kill the man who killed his mother.
But the Herdens left it to the system and God, and at last, forced to
decide, they spared themselves, and were spared, the awful burden of
personally participating in killing Steve Rodriguez. To the young
people watching all this closely and to the rest of us, the Herdens and
the Bexar County prosecutors showed that Texas can forbear killing
killers and still protect those of us free in society. Thus we do see
real ethical progress in our own place and lifetime. And there is a
closure. Martha Herden says it’s as if the family can finally hear
Aggie say again, “Let’s go have a couple of drinks.” I am very proud of
them, and I know that Aggie is, too.
Ronnie Dugger is the founding editor of The Texas Observer. He can be
reached at
RDugger123@aol.com
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