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Tuesday, December 30, 2008

The Avenging Mother

Ellie Nesler’s death was reported in today’s news. She had gained her notoriety the old fashioned way, by killing someone who deserved killing. Her life story is a cornucopia of crimes, as victim, perpetrator, mother --- a hardscrabble life spent in the trailer trash fringes of society. She was the perfect heroine for the T.V. movie, fast food and tabloid gorging denizens of the white flight exurbs, whom she dazzled long before Sarah Palin took the title.

In 1988, her 7 year old son Willie had returned from Christian camp complaining that he had been "touched in a bad way." Suspicion fell on a dishwasher with a child molestation record, Daniel Driver, who was charged. Driver had been suspect in previous incidents, but the church had supported him. The case dragged on until one day, Ellie shot and killed him in the courtroom.

She soon became the heroine of trailer mom supporters of vengeance, her ‘story’ a lightning rod for talkradio, bumper stickers, tee shirts, and a template for Hollywood potboilers, inspiring the likes of Jodie Foster to make movies about this ultimate act of good parenting.

Eventually, as all good stories, the messy facts began to interfere with the perfection of myth. Turns out Ellie had been involved in crimes as a teen, and was revealed to have been loaded on meth at the time of the shooting. Additional evidence of planning cast doubt on her image as the mom temporarily maddened by the sight of her child’s tormentor. Nonetheless, the mitigating factors were enough to justify a manslaughter verdict, which was reversed on appeal. After her release, she got in trouble again, was returned to prison after buying 10,000 pseudoephedrine tabs, the precursor of methamphetamine possessed for sale.

Meanwhile, son Willie was convicted of assault on a handyman in a dispute over tools, and when released from that crime, immediately stomp the victim to death, earning himself a sentence of 25 years to life.

Mom was released from prison in 2006 and died of breast cancer. Willie has asked for permission from prison authorities to attend he funeral.

Sunday, December 28, 2008

Obama and the death penalty

President Obama will have a full plate of immediate, if not emergency concerns, when he takes office. Death penalty policy understandably will not be the top priority for his administration.

Nonetheless, as chief executive, he will need to confront the issue deeply and broadly not long after he takes office and all during his administration thereafter.

A president influences the issue in many ways, including appointment of U.S. Attorneys throughout the nation; appointment of federal judges at every level, including of course the Supreme Court; appointment of an Attorney General and subordinates; control over the budget for capital prosecution and defense. With all these actions, the president sets the course on responses to habeas corpus petitions and other appeals and has specific constitutional duty of considering pardons and clemency.

Barack Obama is the first president in memory to have made statements that evince doubts about the constitutionality and general efficacy of capital punishment. He has written that he doubts the claim that it is a deterrent, is troubled by the racial and social inequity inherent in its enforcement, and has stated variously that he is not a "cheerleader" for the death penalty and that his views on the subject are "complicated."

Obama’s depth of thought was well documented during his campaign so it should not be surprising that this deliberative man should view the issue as complex. As a state legislator in Illinois he was active in the practical debate that arose when Governor Ryan declared a moratorium after revelations about its inadequate justice system which included proof of incompetent defenses, concealed evidence of innocence, leading to innocent people condemned to death. Obama actively supported reforms, but also agreed to expanding the number of crimes for which the death penalty could be sought (including murder of an elder or a child), while at the same time opposed expansion to include gang murders, arguing that premeditation was adequate and fearing that "gang" was a buzzword for racial, ethnic and social bias.

During the campaign, Obama trod a tightrope on the issue, fearful of providing a wedge issue to conservatives. In this policy, Obama learned his Dukakis / Clinton lessons, insisting that he favored the death penalty for Osama Bin Laden and other Al Qaeda terrorists and he declared his disapproval of the recent Supreme Court decision overturning the death penalty for child rape without murder.

Despite his campaign positions supporting capital punishment in principle, which depressed opponents of the law, it is still clear that President Obama presents the greatest hope for policies that at least limit the expansion of the death penalty. Moreover, he has the temperament, intellect, and standing to at least begin to swing the pendulum of public opinion away from support of capital punishment.